FT 

MERDE 

JK 1595 
. B87 
1869a 
Copy 2 


R E V I E W 


OF THE 


EVIDENCE TAKEN ON CHARGES AGAINST 


RICHARD BUST BED 

I 


U. S. DISTRICT JUDGE FOR ALABAMA, 


—BY— 


R O B E R T I I. SMI T FT. 

if 


OF MOBILE; 

WITH COPIES OF CHARGES. 


SECOND EDITION, REVISED AND ENLARGED. 


MOBILE, ALA. 


1869. 






REVIEW 


OF THE 


EVIDENCE TAKEN ON CHARGES AGAINST 

RICHARD BUSTEED, 

U. S. DISTRICT JUDGE FOR ALABAMA, 


ROBERT H. SMITH, 

ll 


OF MOBILE J 


WITH COPIES OF CHARGES. 


MOBILE, ALA. 
1869. 



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CHARGES AND SPECIFICATIONS 


AGAINST 

RICHARD BUSTEED, 

U. S. JUDGE OF THE DISTRICT COURTS OF THE UNITED 
STATES IN ALABAMA. 

By HENRY C. SEMPLE. 


Charge I. * 

That Richard Busteed, Judge of the District Courts of the Uni¬ 
ted States for the State of Alabama, did wilfully and corruptly, for 
his own gain and pleasure, conduct the affairs of his office of Judge, 
without regard to justice, or his official oath and duty, in the State 
of Alabama, from the fall of 1865 to the first of June, 1868. 

Specification 1st. 

That Richard Busteed, while exercising the powers of his office 
in Alabama, in the spring of 1866, did undertake to act, and did 
act, as the counsel, agent, and legal adviser of one Jacob Stanwood, 
then of the City of Boston, Mass., now of Lowndes County, Ala¬ 
bama, in and about the negotiation by the said Stanwood for the 
purchase from one James A. Turner of a tract of land in the Coun¬ 
ty of Lowndes, State of Alabama; that the said land was purchased 
about that time by the said Stanwood from the said Turner, upon 
the legal opinion of the said Busteed as to the sufficiency of the 
title, and his private opinion, after an examination of the planta¬ 
tion, as to the reasonableness of the price demanded therefor; yet, 
the said Stanwood having become dissatisfied with the said pur¬ 
chase, and anxious to procure a recission of the sale, the said Rich¬ 
ard Busteed did unlawfully consult with said Stanwood in relation 
thereto, and did advise him to employ certain counsel named by 
him, and to proceed in the District Court of the United States for 
the Middle District of Alabama. That thereupon the said Stan¬ 
wood filed a bill of complaint in said Court against the said Turner, 
praying an injunction to restrain the collection by Turner of a por¬ 
tion of the purchase money, and that the contract of purchase so 
made by him under the advice and counsel of said Judge should be 
rescinded; and the said Judge corruptly and unlawfully assumed 
jurisdiction of said cause, and granted an injunction therein in the 
spring of 1868. 




4 


Witnesses as to Specification 1st: Janies A. Turner, Baltimore, 
Md.; J. M. Dillehay, Danville, Ky.; Jacob Stanwood, Lowndes 
County, Ala.; William Turner, Montgomery, Ala.; John A. El¬ 
more, Montgomery, Ala. 

Specification 2d. 

That he did make and act upon a corrupt agreement with one 
James Q. Smith, unlawfully and under color of fees and allowances 
to be awarded to said Smith by his orders, to obtain large sums of 
money from the people of Alabama and from the United States, 
with a view of appropriating it to the use of himself, the said Bus- 
teed ; and that he did thus obtain large sums of money, the prop¬ 
erty of the United States or some of the people thereof. 

Witnesses to specification 2d : Josiah Morris, Montgomery, Ala. ; 
E. E. McCloskey, Knoxville, Tenn.; Barna McKinney, Montgom¬ 
ery, Ala.; The Bar of Montgomery and Selma generally. 

Specification 3d. 

That the said Bichard Busteed, while Judge of the District 
Courts of the United States for Alabama, did, as such Judge, ren¬ 
der a judgement or decree in a cause pending before him in the 
District Court of the United States for the Middle District of Ala¬ 
bama in favor of the U. S., and an informer, (not named in the pro¬ 
ceedings,) against one Josiah Morris and one J. F. Johnson, for the 
sum of $30,000, or thereabouts; and, upon being urged by said 
Morris to act upon a writ of error or appeal bond which he offered 
for his approval, did say to the said Morris, in a room occupied by 
him, the said Busteed, in the Custom House, at Mobile—one 
Jacob Wilson, a body servant of said Judge, and Acting Deputy 
Marshal, being at the time present—“you ought to settle this case,’ 7 
or words to that effect; and, upon the said Morris saying he was 
tired of it, and was willing to pay the value of the cotton, the subject 
of the controversy, $5,000 or $5,500, the said Judge then remarked, 
“You ought to settle this with Smith,” (the District Attorney,) and, 
on Morris replying that he could have no intercourse with Smith, 
the Judge said that he would make Smith settle it if he could see 
him; and, being urged by Morris and Jacob Wilson, who was pres¬ 
ent, to go to Montgomery, he finally agreed to go for the purpose 
indicated, and did go. That Morris retired from the Judge’s room 
followed immediately by said Wilson, who told him that the Judge 
wanted the money to take up with him to settle that case, and 
thereupon the said Morris delivered him checks to bearer to the 
sum of $5,000 or $5,500, which went into the hands of the said 
Busteed, and was corruptly received and retained by him for his 
own use. 

Witnesses to Specification 3d: J. Morris, Montgomery, Alabama • 
James B. Powell, Montgomery, Alabama; J. F. Johnson, Mont¬ 
gomery, Alabama; Samuel F. Bice, Montgomery, Alabama; M. J 
Saffold, Washington, D. C. 


5 


Specification 4th. 

Same as 3d, down to the recital of the fact of the receipt of the 
money by Jacob Wilson, and then add: And the said Eichard 
Busteed well knowing that the said money had been received and 
obtained by the said Wilson under the circumstances stated, and 
that it was known to the community, did retain the said Wilson in 
confidential employment about hils person by way of advertising for 
bribes. 

Same witnesses as 3d Specification with Wm. P. Chilton, Mont¬ 
gomery, Alabama. 

Specification 5th, 

That the sum of money mentioned in the 3d Specification as hav¬ 
ing been decreed against the said Morris and Johnson, having been 
paid by the said Morris to John Hardy the U. S. Marshal, the said 
Eichard Busteed, well knowing that the same belonged of right 
either to the U. S., or to said Morris, corruptly ordered in vacation 
one half of the sum to be paid to some other person or persons, 
and procured the same to be so paid by the Marshal, in fraud of the 
rights of the U. S., or of the said Morris, the said Morris having 
executed at the time and filed in tlie Court a writ of error bond, with 
sufficient sureties in double the amount of said judgment or decree, 
to obtain a supersedeas of said judgement or decree. 

Witnesses to the Jtli Specification: John Hardy, Montgomery, 
Alabama; E. E. McCloskey, Knoxville, Tennessee; Samuel F. Eice, 
Montgomery, Alabama $ Wm. P. Chilton, Montgomery, Alabama; 
J. Morris, Montgomery, Alabama. 

Specification 6th. 

That Eichard Busteed, acting as Judge of the District Court of 
the United States for the State of Alabama, and having as such 
Judge a certain authority over Eegisters of Bankruptcy, nominated 
by Chief Justice Chase, did wilfully and corruptly require and de¬ 
mand of George E. Spencer and-Burke, who had been nomi¬ 

nated as Eegisters in Bankruptcy in said State, by the said Chief 
Justice, that as a condition for being permitted to exercise the 
functions of the offices to which they had been so nominated, they 
should severally agree to divide with him the emoluments of said 
offices, or pay to him a considerable sum of money, and did cor¬ 
ruptly receive the same. 

Witnesses to the 6th Specification: George E. Spencer, Ala. 
Address not known ;-Burke, Ala. Address not known. 

Specification 7th. 

That Eichard Busteed, claiming as Judge of the United States 
District Court for the Northern District of Alabama, the power of 
appointment or removal of the Clerk of the said Court, did wilfully 
and corruptly require and receive of L. W. Day, Clerk of said 
Court, a sum of money or a share of the fees of the said office, as a 
condition of his appointment to, or retention in said office. 

Witness: L. W. Day, Clerk, &c., Huntsville, Ala. 




6 


Charge II. 

That Richard Busteed, United States Judge of the District 
Courts of Alabama, did, in his capacity as Judge, sell, delay, and 
deny justice to the citizens of the United States, in violation of his 
official oath and duty as Judge; and instead of using the powers of 
his office to establish justice, exercised them to hinder, deny, and 
delay justice, to the scandal and shame of all good citizens of the 
United States. 

Specification 1st. 

That the Confederate States, (so-called,) having acquired by pur¬ 
chase and conveyance from the owners thereof, many tracts of land 
in the State of Alabama, for the purpose of erecting arsenals, foun¬ 
dries, and other works, to prosecute a war against the United 
States, and among these pieces of property, having acquired title 
by conveyance and purchase from one Phillip I. Weaver of a cer¬ 
tain tract of land in or near Selma, Alabama, and having entered 
into possession thereof, and occupied and used the same for the pur¬ 
pose of a Naval foundry; the said property with all other property 
of the so-called Confederate States in the State of Alabama, by the 
convention between Lieutenant General Richard Taylor, and Major 
General E. R. S. Canby, became the property of the United States; 
and the United States by the-section of the act of Congress ap¬ 

proved the day of July, 1866, enacted that such property should 

be taken possession of by the Commissioner of the Bureau of Refu¬ 
gees, Freedmen, and abandoned lands, and disposed of for purposes 
therein specified; and Brevet Major General Wager Swayne, Assis¬ 
tant Commissioner, by virtue of said act, entered upon and took 
possession of the said tract of land and other lands similarly situated; 
and the said Richard Busteed, Judge as aforesiad, well knowing the 
said facts, and corruptly designing to defeat the purposes of the 
said act, and to divert the said property from the uses specified by 
said act, did conspire and agree with one James Q. Smith, then 
District Attorney of the United States, that he should file an infor¬ 
mation on the part of the United States, and an informer not named 
in the information, for the condemnation of said tract of land and 
other such tracts in his Court, and that the same should be con¬ 
demned as forfeited to the United States, under the act of Congress 
for the confiscation of property used or employed in aid of the re¬ 
bellion, and the property be thus frittered away in costs and parted 
and divided among the creatures of the said Judge; and in pursu¬ 
ance of said agreement the said tract of land was so proceeded 
against and condemned, together with others similarly situated, 
and on complaint being made to said Judge he falsely alleged to 
the Assistant Commissioner that he had no notice of the said sec¬ 
tion of the act ot Congress, though it had been specially called to 
his attention by the counsel employed by General S wayne, and 
copied into the brief furnished to the Judge by him. 

Witnesses : Major General Swayne, U. S,- A., Wm. P. Chilton 
New York. : * ? 


CHARGE III. 

Criminal ignorance of the law by Richard Busteed, Judge of the 
United States District Courts of the State of Alabama. 

Specification 1st. 

That charging the Grand Jury at the May Term, 1868, of said 
last mentioned Court, he sought to induce them to find an indict¬ 
ment for libel against some person or persons who had called the at¬ 
tention of the public to his official corruption. 

Charge IY. 

That Richard Busteed, United States District Judge for Alabama, 
did corruptly decide cases brought before him as such Judge, con¬ 
trary to what he knew to be the law, and from personal, pecuniary, 
or other base motives. 

Specification 1st. 

In this, that in the case of Nickerson vs. Smith Cullum, George 
Holmes and William Knox, sued as late partners composing the 
firm of S. Cullum & Co., Bankers, in the District Court of the Uni¬ 
ted States for the Middle District of Alabama, at the Spring Term, 
1866, of said Court, which was an action brought by the Plaintiffs 
against the Defendants to recover the amount of a bill of exchange 
sent by them to the Defendants for collection in the spring 
of 186i, and which was paid to them at maturity, in April, 
1861, by the acceptor, but the proceeds were not remitted. The 
proof in the case was clear and not controverted that the Defen¬ 
dants received the bill in the usual course of their business as 
Bankers; that it was paid at maturity, and that the Defendants 
were partners at the time of its receipt and payment, and no 
special defence whatever was set up by said Knox, but the said 
Knox was at that time an intimate friend of said Busteed, who fre¬ 
quently sojourned at Knox’s house. Upon the foregoing evidence 
said Busteed, corruptly and to favor Knox, charged the jury, that 
if they believed the evidence, they must find for the Plaintiffs , as 
against Cullum and Holmes, and for the Defendant Knox , and the 
jury rendered a verdict accordingly. 

Witnesses: J. T. Holtzclaw, Montgomery, Alabama; D. S* Troy, 
Montgomery, Alabama. 

Specification 2d. 

In this, that in the case of Martin & Gray don vs. Rose Morgan, 
as administratrix of James Morgan, deceased, in the said Court at 
the Spring Term, 1867, thereof, the Defendants pleaded u ne unques 
administratrixf that in fact she was not the administratrix of James 
Morgan, deceased, when the suit was brought, the action being 
founded upon a contract or undertaking of said James Morgan be¬ 
fore his death, to which the Defendant, who was his widow, was not 
a party. The said Busteed corruptly decided that the Plaintiff was 
not bound to prove that the Defendant was in fact the administra- 


8 


trix of James Morgan, deceased, and, on proof of the debt against 
him, (James Morgan,) charged the jury to render a verdict for the 
Plaintiff, which was accordingly done. 

Witnesses: D. S. Troy, Montgomery, Alabama ; Wm, P. Chilton, 
New York. 

Specification 3d. 

In this, that in the case of Harper vs. Graves and others, at the 
Spring Term, 1867, of said Court, which was an action under the 
statutes of Alabama in the nature of an action of ejectment, 
brought to recover possession of certain lands from the Defendants, 
who were the temporary tenants in possession under Mrs. Ama¬ 
ranth L. Gayle, who claimed title to the land, the said Busteed cor¬ 
ruptly refused to permit the landlord of said tenants to be made a 
party Defendant to said suit, and corruptly refused to consider or 
hear evidence of her title to said land, or of her right to the posses¬ 
sion thereof, her right being clear and Undisputed under the statutes 
of Alabama, (by virtue of which the action was brought,) and 
charged the jury in said cause, that they must find a verdict for 
the Plaintiff, which they accordingly did, (the said Busteed having 
arbitrarily and corruptly announced from the bench previously 
that he would imprison any juror who should presume to find a ver¬ 
dict contrary to his charge,) and thereupon a judgment was ren¬ 
dered, upon which a writ of possession issued, and an aged and 
helpless lady was turned out of a house and home, to which her 
title was unquestionable. 

Witnesses: D. S. Troy, Montgomery, Alabama; T. H. Watts, 
Montgomery, Alabama. 

Evidence .—Becord of the Court in said case. 

Specification 4th. 

That in the case of the United States and informer vs. 192 bales 
of cotton, Josiah Morris and others, adverse claimants, tried at the 
Fall Term, 1867, of said Court, the said Busteed corruptly refused 
to hear evidence of the title of said Morris to said cotton, well 
knowing the said evidence to be legal and relevant. 

Witnesses: Samuel F. Rice, Montgomery, Alabama; W. P. Chil¬ 
ton, New York ; A. Martin, Montgomery, Alabama; D. S. Troy, 
Montgomery, Alabama. 

Members of the Montgomery Bar, and others attending the 
Court. 

Charge Y. 

That Richard Busteed, United States Judge of the District 
Courts for the State of Alabama, did corruptly combine and con¬ 
spire with James Q. Smith, then United States District Attorney, 
and John Hardy, then United States Marshal, to oppress, defraud, 
and extort money from parties litigant in the District Court of the 
United States for the Middle District of Alabama, under color of 
and by virtue of their respective offices as Judge, Marshal and At¬ 
torney of said Court. 


9 


Specification 1st. 

In this, that said James Q. Smith as District Attorney of the 
United States as aforesaid, immediately after entering upon the 
duties of said office, to wit: in the months of August, September 
and October, A. D., 1865, filed a large number of libels and infor¬ 
mations in said Court, to wit: about one thousand, against the 
estate, property and effects of different individuals, alleging the 
property, estate and effects of said persons to be subject to seizure 
and confiscation, by reason of the participation of the owners thereof 
in the rebellion, and that said persons, by reason of owning more 
than twenty thousand dollars’ worth of property, were not embraced 
in the President’s Proclamation of Amnesty of May 29, 1865; upon 
which information notices issued by the Clerk of said Court were 
served by the said Marshal on the said persons against whom the 
same were filed, and in some cases publication was made by the 
Marshal, but in no instance was the property of any such person 
actually seized or taken into custody by the said Marshal—many of 
said persons against whose property said libels or informations 
were so filed as aforesaid were specially pardoned by the President 
of the United States before the service of such notice by the Mar¬ 
shal, and the remainder of them were so pardoned shortly after the 
service of such notice upon them, and all of said cases which have 
been disposed of or were dismissed on payment of costs—no 
services were rendered in said cases except as above stated—yet 
the said Bichard Busteed, well knowing the premises, made an or¬ 
der, as Judge of said Court, at the November Term, 1865, of said 
Court, that in each of said cases the defendant should pay cost as 
follows: on the value of the propert} r , estate and effects, if not 
more than 820,000, one per cent.; if more than $20,000, one-half of 
one per cent, on the excess beyond $20,000 up to $30,000; and one- 
fourth of one per cent, on all over $30,000, in addition to the fees of 
the Clerk of the Court for issuing process, and Attorney’s and Prin¬ 
ter’s fees, and to the Marshal for serving notice, whereby each of 
said parties were compelled to pay, and did pay, to said James 
Q. Smith, or to said Hardy, a large sum, varying from one hundred 
and fifty to five hundred dollars, amounting, in the aggregate, to a 
large sum, to wit, two hundred thousand dollars, of which sum a 
large part, over and above the lawful fees of said Smith and Hardy, 
to wit, one hundred thousand dollars, was retained by them, with 
the knowledge and consent of said Eichard Busteed, and either ap¬ 
propriated to their own use or shared with said Busteed. 

Witnesses: Fr. Bugbee, U. S. District Attorney, and the Dockets 
and Minutes of the U. S. District Court for the Middle District of 
Alabama, at Montgomery, since the close of the war, and Eecords 
of the office of the Secretary of the Interior, and of the Treasury, 
and all the parties defendants in said causes. 

Specification 2d. 

In this, that said Eichard Busteed, corruptly combining and con* 


10 


spiring as aforesaid with said John Hardy, then Marshal of the 
United States for the Middle District of Alabama, made an order 
allowing to said Hardy, in addition to the fees allowed by law, a 
commission of ten per centum on the proceeds of all sales of con¬ 
fiscated property made by him as marshal for auctioneer’s fees, un¬ 
der and by virtue of which order and authority the said Hardy re¬ 
tained for auctioneer’s fees in the case of the United States vs. 192 
Bales of Cotton in said Court, in addition to all fees and commis¬ 
sions allowed by law, a large sum, to wit, $1,700 as auctioneer’s 
fees for selling said cotton under the decree of said Court in said 
cause. 

And in the case of H. A. Nichols vs. J. P. Steele and W. J. Stod¬ 
dard in said Court, retained, in addition to the fees and commis¬ 
sions allowed by law, $120 as auctioneer’s fees, the same being ten 
per centum on $1,200 collected by him by sales of land under exe¬ 
cution issued in said cause-, and a like commission of ten per 

centum in addition to the fees and commissions allowed by law in 
all other cases of sales of property confiscated to the United States 

made by him as such Marshal-, such illegal commissions 

amounting in the aggregate to a large sum, to-wit, many thousand 
dollars ; all of which was done with the knowledge and approba¬ 
tion, and under and by virtue of the authority of said Bichard 
Busteed, as judge as aforesaid. 

Witnesses: Peter Hamilton, Mobile; D. S. Troy, Montgomery, 
as also returns of sales made by said Hardy in cases above stated, 
and in many other cases in the Middle District of Alabama. 

Specification 3d. 

In this, that said Bichard Busteed as such Judge corruptly per¬ 
mitted the said James Q. Smith, as Attorney as aforesaid, to prose¬ 
cute suits in said Court on behalf of the United States, and an in¬ 
former without disclosing the name of such informer, and refused to 
require the said Smith to disclose the name of the informer in any 
case; and that in the case of the United States vs. Josiah Morris 
and J. F. Johnson in said Court, the same being a proceeding by in¬ 
formation on behalf of the United States and an informer, whose 
name was not stated in the information, against the Defendants, for 
a conversion of certain cotton, which had once belonged to the Con¬ 
federate States, and was alleged to have become the property of the 
United States by virtue of the surrender of General Bichard Taylor, 
and of the laws of the United States in such cases provided, the said 
Bichard Busteed, having refused a jury trial to the Defendants, ren¬ 
dered judgment against them for over thirty-one thousand dollars; 
and when said Defendants prayed a writ of error from said judg¬ 
ment, and offered a bond to supersede the same with good and suf¬ 
ficient securities, in double the amount of said judgment, the said 
Bichard Busteed, as Judge as aforesaid, corruptly and with the in¬ 
tent wrongfully to extort said sum of money from said Defendants, 
refused to approve said bond, and purposely, wilfully, and corruptly 
avoided the approval thereof, until after the lapse of the time al- 




11 


lowed by law to said Defendants in which to supersede said judg¬ 
ment, and said judgment having been collected by said John Hardy 
as Marshal, the money collected by him on said judgment or a large 
part thereof, to-wit, over $31,000, was deposited by said Hardy in 
the First National Bank of Selma, Alabama, and was so deposited 
when said Bank suspended and was dissolved, and the said funds so 
deposited, or any part thereof, have not yet been recovered by said 
Hardy, nor by any officer of said Court, yet the said Bichard Bus- 
teed, as Judge of said Court, proceeded to distribute said funds, and 
having decreed thatone-half of the fund belonged to the United States 
he directed the other half to be divided between E. E. McClosky, 
who claimed to be informer in the case, and James Q. Smith, in dif¬ 
ferent amounts, the sum paid to said James Q. Smith being more 
than half, to-wit, over eight thousand dollars, and said Busteed, as 
such Judge corruptly directed and authorized the said John Hardy 
to pay the sums so awarded to said parties out of funds of the Uni¬ 
ted States in his hands as Marshal, not collected in said cause, and 
the same were so paid, the said McClosky then was and still is no* 
toriously insolvent, and said Bichard Busteed, before making said 
distribution and ordering said payments, well knew him to be in¬ 
solvent. 

Witnesses: Josiah Morris, Montgomery, Alabama; Samuel F. 
Bice, Montgomery Alabama; E. E. McClosky, Knoxville, Tennessee; 
Barna MclSnne, Montgomery, Alabama. 

Specification J+th. 

In this, that said Bichard Busteed, while presiding as Judge of 
the District Court of the United States for the Middle District of 
Alabama, at the November Term, 1865, at the Spring Term, 1866, 
at the Fall Term, 1866, and at the Spring Term, 1867, in cases in 
which the said James Q. Smith was of counsel for the plaintiff, hab¬ 
itually brow-beat and insulted the opposing counsel and witnesses, 
and decided questions contrary to what he knew to be the law, with 
a manifest purpose to suppress the truth, and prevent the adminis¬ 
tration of justice; this, in many cases, and especially in the cases of 
the United States and an unknown informer vs. Josiali Morris and 
J. F. Johnson; The United States and an unknown informer vs. A. 
F. Williamson ; The United States and an unknown informer vs. 
192 bales of Cotton; John W. Harper vs. Graves & Gayle; JohnC. 
Martin and John W. Graydon, assignees vs. Bose Morgan, adminis¬ 
tratrix ; The United States and an unknown informer vs. 2,500 
pounds of unpacked Cotton, James Fountain, claimant. 

Witnesses: H. C. Semple, Montgomery, Alabama; D. S. Troy, 
Montgomery, Alabama; S. F. Bice, Montgomery, Alabama; Thomas 
H. Watts, Montgomery, Alabama; A. Martin, Montgomery,’Al¬ 
abama ; William P. Chilton, New York. 

(Signed) HENBY C. SEMPLE. 

Note —The statement in the Memorial as to the character of the officers appointed 
by the Judge, was not intended to apply to the Clerk, Mr. Blake, who had not resided in 
Alabama for some twelve months; nor to his Deputy, whose administration of his of¬ 
fice was generally satisfactory. H. C. S. 






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CHARGES 

Laid before the Judiciary Committee of the House of Representatives 
of the Congress of the United States , 

By ROBERT H. SMITH, 

Of Mobile , Alabama , 

AGAINST 

RICHARD BUSTEED, 

United States District Judge for Alabama. 


Said ROBERT H. SMITH, Charges: 

1st. That Richard Busteed, United States District Judge for 
the District of Alabama, in the fall of 1865, came to Mobile and 
entered upon the exercise of his office as Judge aforesaid, and that 
he, before or about that time, entered into a corrupt arrangement 
with one Lawrence Worrall, of the city of New York, who came to 
Alabama with him, to the effect that he, said Busteed, would ap¬ 
point and cause to be appointed said Worrall, Clerk of the District 
Court and Clerk of the Circuit Court of the United States, at Mo¬ 
bile, and Commissioner of Bail and Affidavits, and also acting Dis¬ 
trict Attorney for the Southern District of Alabama, and that said 
Worrall should divide the fees, emoluments, and profits to be de¬ 
rived by him from and through said several places with him, said 
Busteed, and that said Worrall was by said Busteed, and through 
the influence of said Busteed, appointed to said several places, and 
did for a long time hold and exercise the same, and that the said 
Worrall did exact and receive from and through said several offices 
divers large sums of money, as well in the way of extortion as legal 
charges; and that pursuant to said corrupt arrangement with said 
Busteed, the said Worrall did, while he held said offices and places, 
divide said money with said Busteed, for the use and benefit of said 
Busteed. That these corrupt practices and transactions continued 
while said Worrall held said offices, to wit: in reference to the office 
of District Attorney, until he, said Worrall, was superseded in said 
office by L. Y. B. Martin, in or about December, 1866; and that the 
same corrupt practices and transactions continued in reference to 
the offices of Clerk of said Courts and of Commissioner of Bail and 
Affidavits while said Worrall held said offices, to wit: until he was 
appointed Register in Bankruptcy in the Bankrupt Court at Mobile 
in the year 1867, and that said last appointment was procured for 
said Worrall on a like corrupt understanding between him, said 



2 


Worrall and said Busteed, that said Worrall would divide with said 
Busteed the money he, said Worrall, might receive by, from or 
through said places, and that said Worrall has, from his appoint¬ 
ment to said place, in the year 1867, to the present time, held said 
place, and has exacted and collected divers and large sums of mon¬ 
ey, both legal fees and money by extortion, and has by and with 
the knowledge, consent, encouragement and command of said Bus¬ 
teed, exacted, demanded and received of bankrupts in said Bank¬ 
rupt Court large and unauthorized sums of money before they were 
allowed to come into said Court, and has exacted, demanded ana 
received of creditors coming into said Court as such, large and un¬ 
lawful sums of money; and among other extortions has demanded, 
exacted and received of each creditor live dollars for making proof 
by his own oath, in the form prescribed by the Bankrupt act of the 
United States and by the rules of the Supreme Court of the United 
States, and for which by said laws and rules he, said Worrall, was 
only entitled to charge and receive the sum of twenty-live cents, 
and that said exactions and charges were demanded and received 
under pretence that he, said Busteed, had the right to establish, and 
had established, live dollars as the proper charge for each affidavit 
aforesaid. That these extortions were all committed with the 
knowledge and approbation of said Busteed; that he, said Busteed 
was a party thereto, and that the large sums of rnouey derived from 
said several sources and in said various ways were divided by and 
between said Busteed and said Worrall. 

2d. That when said Busteed, Judge as aforesaid, came to Alabama 
as aforesaid, to enter upon his office as Judge as aforesaid, he brought 
with him said Lawrence Worrall and one Rufus F. Andrews, of the 
city of New York, an attorney at law, and one Jacob Wilson, a for¬ 
eigner, and a menial servant of said Busteed; that said Busteed 
and said Worrall and said Andrews entered into a conspiracy, in 
the execution of which said Wilson was to be the tool of the parties 
as Deputy Marshal, and which conspiracy was in effect that said 
Worrall was to have and exercise the places aforesaid; that 
said Andrews was to assist said Worrall in the office of District 
Attorney, and was to hold himself out as a practitioner in said 
Busteed’s Courts; that said Busteed should so conduct the business 
in his Courts that large and excessive and unlawful cost should 
accrue, and that it should be made manifest that the employment of 
said Andrews would secure success in any cause in which he was 
engaged. That these facts soon became known to the suitors in 
said Courts, and that thereby various large sums were paid by 
suitors in said Courts to said Andrews under pretence of securing 
his legal services but in fact to secure favor with said BusteecL 
That said Busteed, said Andrews, and said Worrall performed their 
respective parts, with the design and purpose of extorting and get¬ 
ting money from the suitors of said Courts, and did thus procure 
large sums of money, which according to agreement said Worrall 
and said Andrews divided with said Busteed, and that said sums, 


3 


beyond lawful fees received by said Worrall, were extortions under 
the cover and protection of said Busteed, and said sums paid to 
said Andrews were bribes to said Busteed under cover of retaining 
said Andrews’ professional services. That said Jacob Wilson was 
used as a tool of the parties, was kept in personal attendance on 
said Busteed as a menial, performed such duties as said Busteed 
assigned to him, and acted as Deputy Marshal of the Courts, went 
armed with large pistols exposed on his person to enforce the col¬ 
lection of whatever sums said Worrall demanded under the name 
of cost, either with or without executions, demanded openly of par¬ 
ties round and arbitrary sums for executing lawful process that 
came to his hands as Deputy Marshal, and that John Hardy, late 
Marshal of said district, was a party to said corrupt combinations 
and appointed said Wilson his deputy to aid in carrying out the 
purposes of said combination, and himself personally participated 
in said corrupt designs and acts. That by said corrupt combina¬ 
tions said Busteed in fact, held the offices of Marshal and Clerk of 
the Circuit and Clerk of the District Courts, and of Commissioner 
of Bail and Affidavits and of Attorney at Law in his Court, sub¬ 
ordinate to his purpose and gain, and that he used the same for his 
own emolument and advantage, using and managing said Worrall, 
Andrews, Wilson and Hardy as subordinate tools for obtaining 
money, and that he did thus overthrow justice, establish wrong and 
bring odium on the administration of law in said Court, and did en¬ 
rich himself with money corruptly got by the means aforesaid. 

3d. That Richard Busteed, United States Judge of the District 
Courts of the United States of America, for Alabama, did in the 
fall of 1865, and from that time to the first of May, 1868, corruptly 
so organize, direct, manage and conduct the business of the District 
and Circuit Courts of the United States at Mobile that justice was 
sold, delayed and denied to the suitors in said Courts. 

He did so manage and arrange that Lawrence Worrall of the city 
of New York, was District Attorney, Clerk of the District and Cir¬ 
cuit Courts of the United States at Mobile, and Commissioner of 
Bail and Affidavits, with the understanding and agreement that he, 
said Worrall, should divide the emoluments of said places with said 
Busteed—that Rufus Andrews, of the city of New York, should 
frequent the Courts and obtain of suitors who had imj)ortant cases 
in the Court large fees which he should divide with said Busteed— 
that said Busteed arranged with John Hardy, then the marshal of 
said Court, that one Jacob Wilson, the body servant of said Bus¬ 
teed, should be appointed deputy marshal of said Court, and that 
the moneys received from said marshal’s and deputy marshal’s 
office in Mobile should be divided with said Busteed. 

That these arrangements and appointments were perfected by 
said Busteed and said agreements were carried out and thus said 
Courts and the business in them were subjected to the corrupt 
control and management of said Busteed, and that he thereby, to 
the great detriment of private rights and public morals and to the 


4 


scandal of the United States, and to his private gain and advantage, 
did corruptly administer his office of Judge of the United States of 
America. 

4th. That said Eichard Busteed, Judge as aforesaid, did corrupt¬ 
ly forestall and prevent inquiries by suitors into divers official ex¬ 
tortions and malpractices of Lawrence Worrall, clerk of said Circuit 
and District Courts, anu of John Hardy, marshal of the United 
States as aforesaid, and of Jacob Wilson, deputy marshal as afore¬ 
said, by insulting counsel who undertook such inquiries, by brow¬ 
beating the witnesses called to the facts and by refusing to allow 
the witnesses to testify to the facts tending to prove the matters 
in issue. 

5th. That said Eichard Busteed, Judge as aforesaid, did cause 
divers suits and prosecutions to be instituted in the District Court 
of the United States at Mobile in the name of the United States, 
called libels against the property of various citizens of Mobile and 
of other parts of Alabama, and against various persons, and did 
afterwards dismiss said proceedings or decide the same in favor of 
defendants upon the payment by them to said Eufus Andrews of 
large sums of money called fees, and which money was divided by 
said Andrews with said Busteed. 

6th. That said Busteed, Judge as aforesaid, did corruptly allow 
and encourage suitors in his Court to frequent his chambers and did 
accept from them presents of liquors and wines, and did accept from 
them entertainments while said causes were being tried before said 
Busteed, he knowing they were suitors in his Court, and that their 
course of conduct was intended to procure the favor of the said 
Busteed in the decision of their causes, and that he, Busteed, was 
influenced thereby to render and so did render judgments and 
decrees for said parties without regard to right, and contrary 
thereto. 

7th. That said Eichard Busteed, Judge as aforesaid, did in va¬ 
rious ways unlawfully increase and multiply costs in cases in his 
Court and did encourage and sustain the officers of his Court in 
such excesses and frauds, and that he, said Busteed, shared with 
said officers the money thus exacted. 

8th. That the course of conduct of said Busteed, as Judge, was 
such as to induce a wide spread opinion among the suitors in his 
Courts and the people of Mobile and other parts of Alabama, that 
their cases could only be won by bribing said Busteed, and that 
divers suitors in said Court did directly or under the name of em¬ 
ploying said Andrews as attorney, bribe said Busteed as Judge in 
causes pending in his Court. 

9th. That the said Eichard Busteed, Judge as aforesaid, did, pre¬ 
vious to the 21st day of April, 1866, corruptly form the design of 
obtaining control of the official books and papers from James M. 
Tomeny, then the Treasury agent of the United States at Mobile, 
for the collection of Government cotton, with the view of prevent¬ 
ing the action of the Treasury Department in respect to said mat- 


5 


ters with which it was charged and with the view of having suits 
instituted ia his Courts on matters already passed on and on mat¬ 
ters pending before said Treasury agency and with the view of ob¬ 
taining through seizures in collusion with secret informers, for his 
and their private advantage, large sums of money from claimants 
of cotton, arid that he, said Busteed, did in pursuance of said de¬ 
sign issue a paper of which the following is in substance a copy: 

The United States, In the United States District 

I 

vs. V Court for the Southern Dis- 

6G2 Bales of Cotton, j trict of Alabama. 

To the Marshal of the United States for the Southern District of Ala¬ 
bama , and to his Deputies , and to either or any of them. 

You are hereby required to seize forthwith, and to take into your 
custody, all records, books, and papers within your district pertain¬ 
ing or in any wise relating to cotton belonging or said to belong at 
any time to the so-called Confederate States Government; also all 
records, books and papers wherever the same may be found in said 
district, relating to the seizure, detention, release, purchase, sale, 
transfer, shipment, or other disposition of any cotton whatever in 
the possession or under the control of any of the persons or firms 
hereinafter named, their predecessors in office, or their successors 
or representatives, or the subordinates of either, such records, books 
and papers being, as I am advised by the United States District 
Attorney for this district, material and necessary upon the part of 
the United States iu this and certain other actions now pending and 
undetermined in this Court, and that such records, books and pa¬ 
pers are essential to protect and sustain the interests of the United 
States in said actions and in other prosecutions to be instituted for 
and upon the behalf of the United States. 

You will seize and detain in your custody such of said books and 
papers as are in the possession or under the control of J. M. Tomeny, 
S. E. Ogden & Co., J. J. Dillon, A. A. Winston, C. J. & B. G. Mc¬ 
Mahon, C. M. Boberts, Waring & Windham, Watson & Co., Pepper, 
Berry & Co., and if any of said records, books and papers, should 
be found in the possession of any other person or persons, you will 
seize and safely keep the same in your custody until the further 
order of the Court. And for this, this will be your sufficient war¬ 
rant. 

Witness my hand at the city of Mobile, this 21st day of April, 
1866. 

(Signed,) BICHABD BUSTEED, 

U. S. District Judge for Alabama. 

And did place the same for execution in the hands of Jacob Wil¬ 
son, Deputy Marshal and menial servant of said Busteed, as afore¬ 
said, who did, under said order, forcibly take from said Tomeny, 

B 


c 


Treasury Agent, as aforesaid, the books and papers appertaining to 
said agency, and said Busteed and Lawrence Worrall did keep the 
same secretly for the use aforesaid of said Busteed. That the Sec¬ 
retary of the Treasury of the United States did cause a motion to 
be made in said Court for the restoration of said books and papers 
to the Collector of the Port of Mobile, but that said Busteed pre¬ 
tending to grant said order did in fact so contrive with Lawrence 
Worrall, aforesaid, that only a few of said papers, and such as were 
of little or no value, were restored to the United States, and that 
the removal of said Worrall from the place of District Attorney, 
and of John Hardy, as Marshal, prevented the execution in full of 
the designs of said Busteed, of harassing by suits various citizens 
of Alabama, for the benefit and advantage of said Busteed, said 
secret informers, and of said Worrall and said Andrews. 

10th. That before the issuance of said order before set out, James 
M. Tomeuy, the Treasury Agent at Mobile, had, as such agent, and 
for and in the name of the United States, taken from one Price 
Williams, of Mobile, 227 bales of cotton as the property of the 
United States, and had caused the same to be shipped to the Agent 
of the United States at New York, on board of a vessel, the name 
of which is not remembered, then lying at the Port of Mobile, and 
said Williams libeled said vessel in the District Court of the United 
States, at Mobile, for a marine tort for taking on board said cotton, 
and said Busteed, sitting as Judge in said Court, heard said libel and 
decreed for said Williams, and the cotton was thereupon surren¬ 
dered to him, said Williams. This was in the winter or early in the 
spring of 1866. Subsequently, in March, 1866, said Williams sent 
this cotton, by a lighter steamer called the u Natchez,” to a ship ly¬ 
ing at the shipping in the lower bay of Mobile, for shipment to 
Liverpool, England, or to some other port, and the lighter sunk on 
her way to the vessel with her cargo of 1470 bales of cotton belong¬ 
ing to various owners and shippers. Nine hundred and thirty-eight 
bales of this cotton were saved by various salvors, who filed their 
libels against the cotton for salvage in said District Court, and it 
was agreed by and between the Proctors for the claimants and the 
Proctors for the salvors that to save cost the cotton which was saved 
and which was wet and damaged might be taken by the claimants, 
on certain good and sufficient and usual Admiralty stipulations, 
which were agreed on, but said Busteed refused to allow the proper¬ 
ty to be taken on stipulation, assigning as a reason that it was 
against the policy of the Court to allow property seized on admiral¬ 
ty process to be taken out of the hands of the Court on stipulations, 
and that the property ought to be sold. Both the salvors and the 
claimants urged in vain that the statutes of the United States and 
the admiralty practice encouraged such stipulations, and that it was 
a right to give them. This was in March, 1866, when most of the 
salvors had exhibited their libels. In a few days, some other small 
amounts of the cargo which were saved were libelled by the salvors 
of the same. 

s 


The last libel seizurq was on the 5th of April, 1866. On or about 
said 5th of April, 1866, said Busteed pretended to have information 
that the 227 bales of cotton, which he had before awarded to be the 
property of Price Williams, was the property of the United States, 
and under this pretence Kurils Andrews, before mentioned, in collu¬ 
sion with said Busteed, filed a claim for it in behalf of the United 
States, whereupon said Busteed, who had as before said, refused to 
allow any stipulation to be given for the cotton, entered the following 
order for the sale of 454 bales of the cotton saved from the said 
steamer Natchez, on the general claim of said Andrews, that the 
United States had a claim to 227 bales of the cotton saved. 

District Court of the United States, 



Southern District of Alabama. 


Charles C. Newberry vs. 06 Bales of Cotton; William C. Piggott 
vs. 27 Bales of Cotton, and others, against sundry bales of Cotton, 
part of the cargo of the lighter steamer Natchez. 

In these cases, which have been consolidated , a motion is made by 
the claimants for the delivery to them on stipulation, of the proper¬ 
ty described in their respective claims, and Mr. K. F. Andrews ap¬ 
pears in behalf of the United States to oppose said motion. Proof 
being made to the Court, that the property libeled and now in pos¬ 
session of the United States Marshal, is in a perishable condition, 
and that certain of said property, to wit, 227 bales of cotton, before 
its shipment on the Natchez, bore the proprietary marks of the 
United States, and was in good order and sound, at the time of said 
shipment, and that these marks were erased and others substituted; 
and it being suggested to the Court, that identification of said cot¬ 
ton, by the submergement thereof in the waters of the Bay, has 
been rendered difficult, it is ordered that 454 bales of said cotton of 
the average condition of the whole, without regard to marks, be re¬ 
tained by the Marshal, and be sold by him uuder the rules of the 
Court, and the direction of Mr. Andrews, and the proceeds thereof 
be paid into the registry of the Court, to abide the final decree in 
the cause. 

It is ordered that the remainder of said cotton be delivered to 
said claimants according to their respective claims, upon their en¬ 
tering into stipulation therefor, with satisfactory security, to be 
approved by the Clerk of the Court, at the rate of $150 per bale, 
conditioned as directed by the rules of the Court. 


KICHAKD BUSTEED, 

U. S. District Judge of Alabama. 


(Signed,) 


Under this order the 454 bales of cotton were sold by the Marshal 
in one lot , and greatly below the market price, and were knocked off 
so quickly that competition was prevented, and a bill of cost aud 
charges was rendered in said matters of $10,414 63-100, which was 
extortionate and false. 


8 

The Proctors for the claimants moved to f.et aside the sale, and 
another motion was afterwards made to re-tax the cost, and said 
Proctor offered proof of the facts of sale above stated. The wit¬ 
nesses, J. S. Secor of Mobile, and Charles Ketchum of Mobile, and 
others, all highly respectable men, were offered, and they and the 
Proctor, Peter Hamilton, Esq., of Mobile, were insulted by said 
Busteed, in the grossest manner, and the witnesses w ere not allowed 
to state the facts, and each motion was overruled. Subsequently 
Price Williams paid to said Busteed, or to said Andrews, for him¬ 
self and said Busteed, a large sum of money, and said Busteed sus¬ 
tained a second time his rights to the cotton. 

It is charged that this claim to 227 bales, and the seizure under 
it of 454 bales, and the sale of it were all devices of said Bus¬ 
teed to create a pretext for not allowing it to be taken under 
stipulations, and to enable him to sell it and to get the large cost 
and expenses charged, and to get the money arising from the sale, 
and to force Williams to pay him a bribe to get the remnant of 
money, and that said Busteed was with said Andrews employing 
the name of the United States to enable him to execute said pur¬ 
poses. 

A plain, naked and exact printed outline of the proceedings in 
the Natchez case is herewith submitted, marked A, and it is be¬ 
lieved that said Busteed was interested in the purchase of said cot¬ 
ton, at said Marshal’s sale. 

11th. That in various cases of libels for salvage in the District 
Court of the United States, at Mobile, said Busteed refused to the 
claimants the right to enter into stipulations such as are allowed by 
the statutes of the United States, and by the general principles of 
Admiralty Law, and that such refusal was for the purpose of in¬ 
creasing the cost and expenses of the proceedings, and that large 
costs and expenses were thereby unnecessarily and corruptly created, 
and that said Busteed received or shared the money so raised. 

12th. That in the winter or spring of 18G8, a large vessel, whose 
name is not remembered, laden with cotton, was struck by lightning 
and sunk in the bay of Mobile. That various sailors and others 
from other vessels near, saved a large amount of the cotton onboard 
the sunken ship, and filed their libels in said District Court at Mo¬ 
bile for salvage in the spring of 1808. That the agents of the owners 
and underwriters upon said cotton, moved to be allowed to take the 
same on entering into the usual admiralty stipulations, but that 
said Busteed refused to allow the same, caused the cotton to be sold 
at auction, ordered and caused the proceeds of sale, amounting to 
about three hundred and fifty thousand dollars, paid into his Court, 
adjourned his Court without trying said causes, though the parties 
were ready, and from day to day answering for trial, went to New 
York and has not returned—said matters are left undecided—the 
money is in the hands or under the control of said Busteed, and the 
salvors, many of whom are sailors, not having homes in Mobile, will 
be compelled to lose their money, or were driven to sell their claims 


9 


for a pittance. It is charged that these proceedings were had to in¬ 
crease the cost for the benefit of said Busteed, and to give him con¬ 
trol of said money, and it.is belived that said Busteed was through 
his agents speculating in the claims of the salvors, sailors and others 
as aforesaid. 

13tli. That at the winter term 1867-8, said Busteed out of malice 
to one Gustavus Horton, who was and is Mayor of the City of Mo¬ 
bile, did maliciously cause and procure said Horton to be indicted 
in his Busteed’s Court, for violation of the act of Congress known as 
the civil rights bill, charging said Horton in effect with discriminat¬ 
ing against onefreedman, Archie Johnson, on account of his said 
Archie Johnson’s color, and that so acting he Horton had as Mayor 
ordered and caused said Archie Johnson to be sent out of the State 
of Alabama; and said Busteed did cause said Horton to be tried and 
convicted of said offence—did refuse on said trial to allow said Hor¬ 
ton to introduce evidence of his innocence—did insult and browbeat 
C. F. Moulton, Esq., said H orton’s attorney, so that lie could not de¬ 
fend his client—that said Busteed did among other things charge 
the Jury in effect that said Horton’s guilt was clear and that he 
should be convicted—that he said Busteed delivered to the Jury in 
said cause a long and elaborate charge, in which he falsely assumed 
the facts to be, as by him set out in said charge—and that by refus¬ 
ing to said Horton a fair trial, and by inflaming the passions of the 
Jury, he did cause said Horton to be wrongfully convicted, and said 
Busteed did then deliver a sentence defaming and insulting said 
Horton, and fiuing said Horton in the sum of two hundred and fifty 
dollars, which he compelled said Horton to pay. That these pro¬ 
ceedings were had to enable said Busteed to revenge himself on said 
Horton for opposing and defeating with the Eepublican party of Al¬ 
abama the political aspirations of said Busteed. 

14th. That one Albert Griffin, of the City of Mobile, was an ap¬ 
plicant for the office of liegister of the Bankrupt Court of Mobile, 
which said Busteed desired should be conferred upon Lawrence 
Worrall aforesaid, for the purposes and reasons aforesaid—that to 
prevent the appointment of said Albert Griffin he refused to allow 
said Albert Griffin to become an attorney of said Court, and cor¬ 
ruptly and by false representations had said Worrall appointed, 
and shares with said Worrall the moneys received from and through 
said office. 

15th. That said Busteed has appointed one Bailey to be assignee 
in bankruptcy in Mobile, and refuses on various pretexts to allow 
the creditors of bankrupts to elect their assignees. That said Bailey 
who is thus given charge of the large effects of bankrupts in the 
Bankrupt Court at Mobile, was at the time of his appointment a 
pedlar of opened oysters in Mobile, was and is wholly irresponsible 
and unfit for said trust, and is the mere creature of said Busteed, 
and administers his office for the pecuniary benefit of said Busteed. 

16th. That said Busteed, without any good cause, refuses to al¬ 
low one Healey, the Marshal of the District of Alabama, to take 


10 


charge of bankrupt effects as provided by law until the appointment 
of the assignee, but commits the same to the care of said Jacob Wilson, 
whom said Healy refuses to allow to be his Deputy, and said Busteed 
causes, in conjunction with said Worrall, delays and impediments to 
take place in the election of an assignee; then refuses the appoint¬ 
ments made by the creditors, and -finally places said Bailey in pos¬ 
session of the assets, which, between said Wilson and said Bailey, 
are largely converted to the use of said Busteed. 

17th. That in the Spring of 1866, said Busteed caused two hun¬ 
dred and thirty-nine bales of cotton to be seized in the District 
Court of the United States, at Mobile, under process and on allega- 1 
tions that the same were the property of the United States. That 
said cotton was claimed by Theodore Nunn & Thompson, for the 
Planter’s Factory of Autauga county, Alabama. That while the 
cotton was under seizure by John Hardy, then the Marshal for Ala¬ 
bama, he, the said John Hardy, feloniously appropriated the same 
to his own use and to the use of said Busteed, and substituted two 
hundred and thirty-nine other packages, called bales of cotton, in 
their place, of inferior quality, and of less weight than those seized, 
and that said Busteed, to prevent the discovery of said act, did, 
against the orders of the Attorney General of the United States 
given in said matter, cause said substituted cotton to be sold by 
said John Hardy, Marshal, as aforesaid, and has never accounted 
for the proceeds of the cotton sold, nor required s$id Hardy to do 
so, and has without authority of law transferred the case from the 
District Court of Mobile to the District Court of Montgomery, and 
then back to the Court at Mobile, and has finally dropped the case 
from the business of the Court. That said cotton was first seized by 
the/tTeasury Agent of the United States at Mobile, and was referred 
for adjudication to the Secretary of the Treasury of the United 
States, at Washington, and was by said Secretary of the Treasury 
ordered to be returned to the claimants, and was on such order at¬ 
tempted to be so returned by James M. Tomeny, the Treasury 
Agent, but that said Busteed, who had cahsed the same to be taken 
from said Treasury Agent, refused to listen to the decision of the 
Secretary of the Treasury, and in open Court denounced the Secre¬ 
tary of the Treasury for having made the decision, and said, in open 
Court, among other abuse of said Secretary, that he “ had better at¬ 
tend to his greenbacks.” When the Attorney General ordered, in 
effect, that the cotton should not be sold, said*Busteed disregarded 
the order, sneeringly saying in opVn Court, iu effect, (speaking of 
Mr. Speed, then Attorney General,) that “lie had heard of Attor¬ 
ney Generals who knew some law.” 

18tli. That said Richard Busteed is ignorant of the duties of his 
office, ignorant of ordinary principles of law, arrogant, presumptu¬ 
ous, overbearing and insulting in the discharge of his duties. 

19th. That\hi a certain cause lately pending on the equity side of 
the Circuit Court of the United States, at Mobile, wherein William 
E. Leverich and others were Complainants, and the Mayor, Aider- 


11 


men and Common Council of the city of Mobile, were Defendants, 
filed in said Court on or about the loth of May, 1867, one Moses 
Waring of the City of Mobile, who mainly managed, out of Court, 
the cause for Complainants, and with whom he was a party largely 
in interest, did through said Rufus Andrews and otherwise, bribe 
said Busteed to decide said cause for Complainants, and that being 
so bribed he, said Busteed, did decide said cause for Complainants, 
without regard to the right, law or justice of said cause. 

20th. That for a long time, to-wit, in the Spring of 1866, and 
while said Busteed was holding Courts in Mobile, no minutes or re¬ 
cords of the proceedings of the Courts, which were daily engaged in 
the transaction of large and important business, were kept, and that 
up to December, 1867, said Busteed did not examine or pay any at¬ 
tention to the records of his Courts, and that in the spring of i866, 
John A. Cuthbert, who acted as deputy clerk of said District and 
Circuit Court, of liis own accord made up the minutes of the past 
six or eight weeks, from imperfect docket entries, from private notes 
of the Judge, and from loose scraps of pencil memoranda made by 
said Cuthbert. 


. 

' ■ - • . I . •> ... 


' 



. 


' 

* 















v 







R E V I JE W 


OX TUF 


EVIDENCE REPORTED RY THE JUDICIARY COMMITTEE OF THE HOUSE OF 

representatives of tiie united states on charges 

AGAINST RICHARD RUSTEED, UNITED STATES 
DISTRICT JUDGE FOR ALABAMA. 


By ROBERT 11 . SMITH. 


In discussing the evidence upon the charges preferred against 
Judge Busteed, I propose, 

1st. Briefly to consider his general bearing and conduct on the 
bench. 

2d. To discuss specific cases of corruption in connection with his 
officers and others. 

3d. Lastly, to show that he is impeachable under the statute law 
for non-residence. 

The condition of the administration of justice in Judge Busteed’s 
Court is pi etty fully exhibited by the evidence taken. A general 
review of such evidence will probably present a sufficient considera¬ 
tion of se veral of the charges; will avoid much repetition, and is 
perhaps due to Judge Busteed; for if it shall show a course of gen¬ 
eral propriety, it will go a great way towards relieving the accused. 
If, on the contrary, it shall show that he has failed to comprehend 
the dignity and propriety of his place; has violated common decenc 
in the discharge of liis duties, and has subverted justice in his corn* 
such proof must be received as strong testimony not only of his 
fitness for his high office, but of his corruption and guilt. I, th e ' 
fore, propose to begin this argument by presenting 

A BRIEF REVIEW OF THE ACCUSED AND HIS COURT. 

Judge Busteed has proven by almost every Alabama lawy f w .k? 
has been examined, that he was treated by each, not o>y 
marked courtesy, but that he was courted and entertaiuec nvltl1 al * 
most obsequious politeness. 

C 



The members of the Bar of Alabama who testified before the com¬ 
mittee, are John A. Cnthbert, Peter Hamilton, Thomas H. Herndon, 
Amos B. Manning, Judge Dargan, Thomas A. Hamilton, William G. 
Jones, J. Little Smith, Alexander McKinstry, C. F. Moulton and 
Percy Walker, of the Mobile Bar; and William P. Chilton, Abra¬ 
ham Martin, John A. Elmore, Samuel F. Eice, Frank Bugbee, H. C. 
Semple and others of the Montgomery Bar. 

Judge Cuthbert (80 years of age, and probably the senior member 
of the Alabama Bar, and to whose intelligence the gentlemen of the 
Committee before whom he w as examined will bear witness,) on page 
73 of the printed record, in answer to the question, 

Who are the leading gentlemen of the Mobile Bar? State their 
character as to ability ? Answers, Peter Hamilton, w 7 ho is here in 
the city, Judge Jones, Dargan and Taylor; J. Little Smith, Judge 
McKinstry, Mr. Anderson, Manniug and Walker, are among those 
who are considered eminent in their profession, and who have long 
been engaged in the practice there. Judge Dargan is an ex-cliief 
justice of the Supreme Court of Alabamp. 

Judge Busteed has cross-examined almost every lawyer who was 
a witness, to prove how marked were the civilities of the bar to¬ 
wards him. (See the testimony of these witnesses.) 

The point of these courtesies is thus well brought out by the 
Judge’s cross-examination of Mr. Manning, on pages 240 and 247 of 
the printed record: 


Q. Did you dine with Judge Busteed at Mr. Anderson’s at a dinner 
given by Mr. Anderson to Judge Busteed? A. I did. 

Q. On February 8, 1867? A. I do not know the date. 

Q. About that time? A. I nresume so. It was in the winter of 
1866-67. 

Q. On the 13th February, 1867, did you give Judge Busteed a dinner at 
your own house ? A. I gave him a dinner in the winter of 1866-67. On 
what day I do not know. 

Q. That was a dinner table surrounded entirely by lawyers ? A. Yes, 
sir. 

Q. Was J. Little Smith one of them? A. I think he was. 

Q. Was John J. Walker? A. He was. 

Q. He was a Judge of the Supreme Court? A. No, sir. John J. Walker 
was never a judge. He had been an attorney in earlyUife, but was then a 
merchant. 

Q. Was John T. Taylor one of them? A. Yes, sir. 

Q. He is a lawyer? A. Yes, sir. 

Was D. C. Anderson one of them? A. Yes, sir. 

Thomas H. Herndon was one of them ? A. Yes, sir. 

GeorgeN. Stewart? A. Yes, sir. 

W. J. Jones, predecessor in the place Judge Busteed holds? (Mis- 
for W. G. Jones.) A. Yes, sir. 

Your partner? A. Yes, sir. 

fiQ ^Y oes y° u r partner (Percy Walker) that you know of, entertain the 
sarae^eiings towards the Judge that you do? A. I cannot undertake to 
his feelings are. I think he entertains pretty nearly the same 
leenn i do.towards you. I desire to say, in reference to these en¬ 



tertain 
ated a 

they qq 


nts given to Judge Busteed, that his course as judge had cre- 
~tdeal of dissatisfaction among the members of the bar, and 

ered that it was necessary to do something to try and make 


3 


him more kindly and .just in his office. It was suggested that atten¬ 
tions and civilities of the members of the bar to him might have the 
effect of miking him abetter and juster juige; and that it was our 
duty to our clients and to the public, for whom we were representa¬ 
tives in his court, to be as kindly in our relations to him as possible. 
It was upon suggestions of that sort that it was intended to give him 
a series of entertainments. Some were given, but they were not con¬ 
tinued, and my own was the last given by the members of the bar— 
as members of the bar—to Judge trusteed. 

At page 06, Peter Hamilton, on cross-examination by Judge Bus- 
teed, proves that in the spring of 1866 lie met Judge Busteed at din¬ 
ner with citizens of Mobile, and with members of the profession; 
that he again dined with him on Mr. Gage’s invitation; and that 
Judge B. and Mr. Andrews dined with Mr. Hamilton, at Mr. H.’s 
house and with his family; and that Mr. H. again, in a few days 
after, dined with the Judge, and Mr. Worrell and Mr. Andrews (the 
two particular friends of the Judge), at General Withers’. This is 
Jones M. Withers, a witness. 

See the evidence of nearly every lawyer examined in the case, and 
note liow carefully Judge Busteed has been to show that they at 
least were very civil to him, whatever his conduct was to them. 

We observe that the last answer of Mr. Manning, quoted above, is 
pregnant with the following ideas : 

1. That the judicial conduct of Judge Busteed had created great 
dissatisfaction with the bar. 

2. That this dissatisfaction was not based upon some mere pecu¬ 
liarity of manner, but that with bad manners he combined official 
injustice. 

3. That lie was so bad and so unjust a judge, they were impelled 
by their relation to their clients and the public, to stoop to the ex¬ 
pedient of attempting his reformation by special civilities under 
their own roofs. 

4. That the experiment proved fruitless and was abandoned. 

Comparing the names of the guests mentioned by Mr. Manning 

with the list of prominent lawyers named by Judge Cuthbert, we see 
how comprehensive and earnest was the effort of the bar to rescue 
the bad judge. All named by Judge Cuthbert were guests at Mr. 
Manning’s, except Peter Hamilton, Judge Dargan and Judge Mc- 
Kinstry. Peter Hamilton had himself commenced these civilities. 
Judge Dargan’s name will hardly be looked for among the guests 
dining with Judge Busteed after reading Peter Hamilton’s account 
of Judge Busteed’s bearing to Judge Dargan at page 95; Thomas 
H. Herndon’s at page 123, and Judge Dargan’s evidence on the same 
subject, taken in Mobile. Judge McKiustry’s name would not be 
looked tor at this dinner after reading at pages 343 and 344 from his 
own mouth that he is positively unfriendly with several of these 
leading lawyers. Has had a fight with Judge Dargan, a man verg¬ 
ing on old age, and an ex-chief justice of the Supreme Court of Ala¬ 
bama ; is merely on speaking terms with another, and has no social 
relations with the families of his brother lawyers, though he has re- 


4 


sided for nearly thirty-two years in Mobile, and was on the City 
Bench for eleven years'; and as to whose social standing Judge 
Chilton (for many years Chief Justice of Alabama, residing at the 
capital of the State,) significantly says, at page 36, in reply to Judge 
Busteed’s question : l)o you know Judge Alexander McKinstry, of 
Mobile ? What is his professional and social reputation in the iState 
of Alabama f I know him. I am notaswell acquainted with Judge 
McKinstry as I am with a number of lawyers. I do not knoiv that I 
can speak from personal hnoudedge of his social standing in Mobile— 
thus avoiding a reply as to “his social reputation in Alabama,’’ or 
elsewhere. 

Bemembering the civilities of the bar to Judge Busteed, let us see 
what was his bearing and conduct on the bench, and then let us look 
at the wrongs done to parties, and see whether his conduct was 
merely that of au ill-bred man, or if there was a sinister and per¬ 
sonal purpose to be attained by establishing a terrorism in his 
court, which should silence all opposition and enable him, through 
his officers, to plunder with impunity. The significant facts appear 
beyond doubt that the suitors were robbed. The facts indeed are 
not denied. It cannot be denied, for instance, that the Nunn & 
Thompson cotton and the Withers cotton were stolen. It cannot be 
denied that the costs in the Katchez cases were immensely multi¬ 
plied and were unheard of—that the Freedman’s Bureau property 
spoken of by General Swayne was appropriated—that a large por¬ 
tion of the money in the Morris case went to J, Q. Smith—that Wor¬ 
rell took excessive fees, and that Jake Wilson took §5,000 from one 
suitor, and got large sums under the guise of auctioneer. The an¬ 
swer of Judge Busteed is, Wliat have I to do with all these things? 
My officers did these wrongs, but what have I to do with them ? 
This is just the point. The wrongs are established, and the partici¬ 
pation of the Judge in them will appear as plainly as the wrongs 
themselves if we attend to the course of his conduct and action. It 
is not to be supposed, however, that the evidence against him would 
be so direct as that establishing the acts of the agents employed. 
That 239 bales of cotton were carried to a pickery and half of them 
taken out by order of the Marshal or his deputy, is a fact which has 
been established by direct proof. The participation of Judge Bus¬ 
teed in it can be shown, necessarily, only by circumstantial evi¬ 
dence. The proposition of the prosecution is that these wrongs of 
the officers were guarded and protected by such modes of proceed¬ 
ings and by such conduct of the Judge as overawed and suppressed 
inquiry; and that if some attorney dared attempt to right his client, 
he was taught that the Judge of the court would be a speedy 
avenger, and all others would take warning. 

On this branch of the inquiry the first proposition is, 

WHAT WAS THE GENERAL CONDUCT OF THE JUDGE IN COURT 
AND WHAT WAS ITS NATURAL EFFECT. 

The following extract from the testimony (189) of William D. 
Dumi, retired lawyer, - but who, as President of a railroad, was fre- 


6 



quentty attending court as a suitor, slio^s that Judge Busteed not 
only offered a wanton insult to the whole bar, but on the bench, in 
open court, boasted ofliis own infamy: 

# 

Q,. Did you hear Judge Bu«teed on the bench, when the bar were 
attempting to get him to make some rules in relation to the disposi¬ 
tion of business, make any statement in reference to his course of con¬ 
duct when he was at the New Yoik bar? if so, what did he say? A. 
I was present in court on one occasion when the lawyers were endeavor¬ 
ing to settle the practice as to continuances, and as to laying cases over 
for trial. Among other things it was remarked that the indisposition of 
counsel would be good cause or not proceeding with trial, and for con¬ 
tinuing or postponing the case from day to day. That was the idea. 
They were trying to settle some rules of court. The Judge was on the 
bench. In response to the suggestion of the indisposition of counsel, 
the Judge replied very definitely that that would not do ; that it was 
known in New York when lie was at the bar, that no man could get 
sick faster or sicker than lie could. That was in response to the prop¬ 
osition as to the indisposition of counsel being received as an excuse 
for not proceeding with trial. 

Reference is made to the narrative of Thomas H. Herndon, pages 
122, 123 and 124, of the Judge’s unprovoked conduct in Court to 
Mr. Hall, Judge Dargan and to Mr. Percy Walker. 

The business of the court was dealt with contrary to the expressed 
announcement of the Judge, by reason of which Mr. Hall, an attor¬ 
ney, was forced to a non-suit in one important cause; and for taking 
the non-suit lie was fined ten dollars. 

Judge Dargan, for asking that a motion made by him and over¬ 
ruled should be put on the docket, and his exceptions to the ru¬ 
ling of the court entered, was disposed of with the remark, “ Hope 
springs eternal in the human breast, Judge Dargan.” Judge Bus¬ 
teed had established a rule that no case should be heard and no 
trial take place until copies of the pleadings had been furnished to 
the court. The Judge, at the instance of J. Q. Smith, (as to whom 
and his relations with the Judge, see the testimony of Gen. Swayne, 
and of the witnesses generally who reside in Montgomer}',) having 
forced Mr. Percy Walker to trial on the same day when the call was 
not peremptory, Mr. Walker inquired if copies had been furnished 
as required by the above rule. The Judge replied, “ I beg your 
pardon Mr. Walker, I had forgotten you were an associate justice 
of this court;” adding, “if you ask me historically whether copies 
have been furnished me, I will tell yon historically that none have 
been furnished, and that the time has not yet arrived in this case for 
copies.” Note, that by the rule the time had arrived for copies. 

Thomas H. Herndon was always treated with politeness by the 
Judge, but was uever allowed to argue a case—but, as the witness 
expresses it—“lie always choked me off politely.” And the Judge 
always decided against him. Mr. Herndon is the law partner and 
brother-in-law of Robert H. Smith. 

Read the following testimony by A. R. Manning of the foregoing 
matters and others, pages 244, 245. 

Q,. You have said that Judge Busteed would sometimes adjourn his 


C 


court capriciously; will you state any days or months upon which 
these adjournments were so made. A. fn the spring of 1868, when the 
court was held, and Mr. Chilton was attending to the case of the Uni¬ 
ted States against certain cotton levied upon, which was claimed by 
Lehman, Durr & Co., the Judge on one day, I remember, opened, I 
think, the circuit court, and, having called a number of cases, ad¬ 
journed it until the next day, as I understood. 

Q. This was after the Judge had been shot. A. Yes, sir. 

Q,. Why do you say that was a capricious adjournment? A. Wait, 
sir, until I get through. He then opened the District Court, and called 
the admiralty docket, perhaps, or some other docket of the district 
court, and after having called a number of cases, directed that court 
to be adjourned, and the circuit court to be reopened. The circuit 
court was reopened, some causes called, and after awhile that court was 
adjourned. Thereupon Judge Chilton arose and asked the court to take 
up the case of the United States vs. Lehman, Durr & Co., or in which 
they were claimants, and endeavored to get a trial, as he had been en¬ 
deavoring for many days before, and the court stated that the district 
court, in which, I think, it was pending. (I maybe mistaken as to the 
court), was adjourned, to which Judge Chilton replied that he (Judge 
B.) had reopened the circuit court after it had been adjourned, and lie 
thought, that for the trial of this cose, he might reopen the district court. 
The judge declined to do so, and adjourned the rourt. 

Q,. And is that the capricious adjournment of which you have spoken. 
A. The adjournment of the circuit court for the day, the opening of the 
district court, then the reopening of the circuit court and adjournment I 
certainly considered capricious. 

By Mr. Eldridge : 

Q. Were these courts adjourned to any specific day, when the ad¬ 
journments were made ? A. I understood them to be adjourned to the 
next day. 

Q,. Each time? A. Yes, sir. 

Q,. And then opened again on the same day? A. Yes, sir. 

By Judge Busteed : 

Q. Do you mean to say that Judge Busteed ever adjourned either the 
district or the circuit court to a day certain, and before the arrival of the 
period to which the courts were adjourned, opened the court again. A. 
That was my understanding of it on that day, and I was very much 
surprised at it. 

Q. How were the adjournments of the court usually made ? A. By an 
order to the crier to adjourn the court. 

Q. Publicly given ? A. Yes, sir ; the crier standing at the further end 
of the room at the time. 

Q. Did you ever know of a secret adjournment of Judge Busteed’s courts ? 
A. No, sir.. 

By Mr. Eldridge : 

Q. In these cases to which you refer, did the crier cry the court ad¬ 
journed ? A. I think he did. 

Q. And then after that announcement was made by the crier that same 
court was opened again on the same day ? A. I think so. 

Without swelling this review by references and quotations re¬ 
specting the general manner of the Judge, and his mode of conduct¬ 
ing the courts, it will suffice to refer to the testimony of almost every 


7 


lawyer whose evidence was taken, making manifest that his conduct 
was unprovokedly and willfully rude, ovearbearing and insulting, 
to witnesses and counsel; that the irregular mode of conducting 
business in the court rendered it impossible for parties to obtain 
justice, and left them at the mercy of the Judge’s caprices; and that 
a scheme of legerdemain was resorted to, by which the proceedings 
became a mockery of justice. A few instances of such legerdemain 
will sufficiently illustrate the rule. 

The Supreme Court of the United States had in Toland vs. Sprague, 
12 Peters, 300; in Irvin vs. Lowry, 14 Peters, 493, and in several 
other cases collected in Brightley’s Federal Digest,* p. 60, held that 
a defendant could not be brought into court by a levy on his goods 
by foreign attachment, and that the only mode of bringing a party 
into court was by personal service of process. But the same au¬ 
thorities held that the want of service is cured if the defendant appears 
in the case. Rufus Andrews, a special friend of the Judge, as is 
shown by the Judge’s admission in the record, and by other proofs; 
who came and went with the Judge, and who lived with him, and 
who had no office, no books, and no reputation as a lawyer in Mo¬ 
bile, and was entirely unknown there until he came with the Judge, 
and who never personally conducted before the court any complex 4 
trials—but who was employed in many large cases, and wiio always 
gained them—and who is charged with being a confederate of the 
judge; this Mr. Andrews sued out an attachment iu favor of Claflin 
& Co., of New York, vs. Rosenstock & Co., and property was levied 
on as defendants’; but no process was served on them. Mr. Man¬ 
ning wished to bring to the notice of the court the facts that the 
defendants had not been brought into court. Judge Dargan, who 
represented creditors of the defendants, wished to make a motion 
for their i>rotection. 

The Judge refused to hear either, unless he would appear for the 
defendants , and thus cure the leant of service , and malce Andrews ’ suit 
good , and deprive his client of the very right he was employed to assert. 
The property attached amounted to between $75,000 and $30,000. 

Blackstone, vol. 4, p. 141, thus comments on such conduct. “There 
is yet another offence against public justice, which is a crime of deep 
malignity; and so much deeper, as there are many opportunities of 
putting it in practice, and the power and wealth of the offenders 
may often deter the injured from a legal prosecution. This is the 
oppression and tyrannical partiality of judges, justices, and other 
magistrates, in the administration and under color of their office. 
However, when prosecuted, either by impeachment in Parliament, 
or by information in the Court of King’s Bench, (according to the 
rank of the offenders,) it is sure to be severely punished with forfei¬ 
ture of their offices, (either consequential or immediate,) fines, im¬ 
prisonment, or other discretionary censure, regulated by the nature 
and aggravations of the offence committed.” 

Judge Busteed, in fixing unheard of allowances to be made to the 
officers of his court in Montgomery, informed the bar that he would 


8 


regard any opposition to his cost bill as unkind. See evidence of A. 
Martin and E. W. Pettus, taken in Montgomery. As might have 
been expected, no motion was made to retax cost in Montgomery. 

But one motion is remembered to hare been made to retax cost 
in Mobile. It grew out of causes known as the Natchez salvage 
cases. The costs specially known and originally passed on and 
allowed by the Judge exceeded $10,414 03. See transcripts of the 
records on tile, numbered from 1 to 8, inclusive. They are a part of 
the evidence in this investigation, and are referred to in the printed 
evidence, but were not printed. (See index to printed proofs, num¬ 
ber 38J.) Transcript No. 0 contains the several cost bills in items, 
and the signed decrees of the Judge allowing them, except as to one 
case, and as to that see transcript No. 3, p. 18. For index and ex¬ 
planation of this record see appendix to this review. 

The suits were salvage suits of the 'simplest kind. The property 
in the actual charge of the court was 454 bales of cotton, tha t brought 
about $45,000. Other cotton saved, arm which was turned over to 
the claimants, on stipulations, amounted to about $43,000. 

< Peter Hamilton, Esq., the Proctor for the claimants, moved to set 
aside the sale made of the property, and showed clearly that it should 
be set aside. He was refused with insult, and driven from the court. 
He moved to retax the cost. A small reduction was made of the 
costs; but after this reduction, the amount of $10,414 G3 was al¬ 
lowed. His testimony fully sets forth the conduct of the Judge on 
these occasions. It is hardly necessary to add, that no other motion 
was made to retax cost in Judge Busteed’s court in Mobile; and that 
such conduct itself answers the question, what had Judge Busteed 
to do with the extortions of his officers ? 

The costs of $10,414 G3 were allowed in fact (except attorney’s tax 
fees, and some small part of the allowances for depositions,) to John 
Hardy, Jacob Wilson, and Lawrence Worrail. Who these parties 
were, and their relations to the Judge, will appear in the sequel. A 
particular history of the cases will show Judge Busteed’s agency in 
purposely creating costs, by dealing with tie causes to that end, in 
clear violation of the law and the practice of Admiralty Courts. 

The enormity of the amounts charged for the services rendered 
will appear by comparing the items, found in the records on tile, 
with the act of Congress regulating fees, approved February 2G, 
1853, (10 U. S. Stats, at large, p. 1G1.) 9 

The sums which made up the $10,414 G3, are thus generalized : 


* 



9 


FROM TRANSCRIPT 4, PAGE 40, ANJ> TRANSCRIPT 6. 

1. —Proeror's fees, thiny-two cases, $20 each.. ..$ 040 00 

2. —Depositions of witi es^es... 390 00 

3. —United Slates Coir mission el* Wo mill —thirty-two reports, 

S10 each ... ‘. 320 00 

4. —District Cierk Wo rail —commissions 1 jrer cent, on gross 

pr<'C.v Is :>r* sales >‘93,030.30, of which were paid in court 
$50,758.06 . 930 39 

5. —United States District Clerk Worrail—clerk's fees. 1,205 10 

6. —United States Marshal Hardy—expenses 

claimed...$2,213 25 

90 00 

227 00— 2,530 25 

7. —United States Marshal Hardy—fees and com¬ 

missions... 2.441 48 

Auctioneers’ fees to Jacob Wilson. 1,430 10— 3,871 58 


$9,947 32 


8.—United States Marshal—charges in case of Gray..$388 18 

United States Clerk—charges in ease of Gray. 79 13— 467 31 

Making total of costs and charges, the sum of.$10,414 63 


The above is a mere table of the results of the thirty-two bills of 
costs in Transcripts No. 4, page 40 and No. 6, and in Gray’s case. 

Without swelling this paper by recitals of all the various instances 
of capricious, overbearing and unjust conduct in the Judge, refer¬ 
ence is made to the depositions of Manning, P. Hamilton, Cuthbert, 
Dunn, Dargan, Herndon, Martin, Pcttns, Rice, Swayne, T. Hamil¬ 
ton, IToi ton. The case of Horton, prosecuted before Judge Bus- 
teed, is an instance of the conviction of an innocent man by the 
oppression and persecution of a Judge bent on revenge, of which a 
parallel can hardly be found. 

Let us now enumerate briefly other cases of deprivation of rigjhts 
inflicted on suitors, and see who were the parties ostensibly benefited 
thereby, and what relations they bore to the Judge, and what con¬ 
trivances he put in mot on to enable them to reap their plunder, and 
what protection he th ew around them. It will appear in almost 
every case, except in that of the conviction of Horton, which will 
be shown to have been produced to gratify personal spite and malice, 
that the parties ostensibly benefited were John Hardy, late Mar¬ 
shal, Jake Wilson, the Judge’s body servant, J. Q. Smith, late Dis¬ 
trict Attorney for the Middle District of Alabama, Lawrence Wor- 
rail, the former law partner of the Judge, and first Clerk, District 
Attorney, Commissioner of Bail and Affidavits, and late Register in 
Bankruptcy; and Rufus An draws, who came and went with the 
Judge; who appeared in divers large suits, especially wlien there 
was plunder, and who won them all: who lived with the Judge and 
had his so-called office with Wor rail; and across a passage from the 
Judge’s chambers, in the third story of the Custom House. 

. But first and preliminary to this inquiry, let us look into the case 

OF SO-CALLED PRESENTS TO THE JUDGE. 

The investigation of the several matters will be confined to acts 
which are beyond dispute. 

D 












10 


George E. Spencer, now United States Senator from Alabama, 
and Burke and Day and Worrall, and J. O. D. Smith, were Regis¬ 
ters in Bankruptcy in Alabama, and were liable to be suspended 
from office by the Judge, and their fees were subject to his rulings. 

On the 12th of February, 1868, Abner R. Storer, the Deputy Clerk 
at Montgomery, wrote J. O. D. Smith the following letter, by express 
direction of Judge Busteed: (p. 220.) 

Montgomery, February 12,1868. 

Dear Sir: 

In future, petitions in Bankiuptcy will not be filed until fifty 
dollars are deposited with the Clerk, as required by law, and the 
Clerk’s fees paid in advance, or amply secured.. Judge Busteed ar¬ 
rived here this morning, in quite a leeble condition, unable to attend 
to any business. 

Yours respectfully, E. C. Y. BLAKE, 

Clerk of the United States District Court. 

J. 0 . D. Smith , Opelika. 


A similar letter was written to Spencer. (See p. 220.) 

The following extract from Storer’s evidence, p. 220, is explicit: 

Q. Did you write that letter, and if so, by whose direction ? A. I wrote 
that letter by the direction of the Judge. 

Q. Communicated to you personally ? A. Communicated to me per¬ 
sonally. 

By Judge Busteed: 

Q. Did you write that letter by my direction? A. I was told to write 
to Smith to that effect. 

By Mr. Woodbridge : 

Who told you to do it ? A. The Judge told me to do it. 

By Mr. SemBle : 

Q. Did you write a similar letter to that to General Spencer? A. I 
did. 

Q. By whose order did you write it? By order of Judge Busteed. 

Q. What was the date of the letter to General Spencer? A. I think I 
wrote both letters the same day. 

Q. And by the same authority ? A. By the same authority. • 

Spencer, however, at page 41, testifies that Judge Busteed told him 
that he knew nothing about said letter or order. 

The efiect of the foregoing letter was to require the Register to 
pay all the money he received in to the Clerk, or his business was 
stopped; that is, none of his cases could be filed. (See p. 279 
Worrall’s answers to R. H. Smith’s questions.) 

Soon after, however, Spencer’s petitions were referred to him by 
J udge Busteed’s order, without the fifty dollars being deposited with 
the Clerk, “ as required by law.” 



11 


The following questions, to answers by Storer, (p. 220) sets this 
point at resc: 


Q. Will you say whether the petitions which were filed by Gen. Spen- 
eer in Gen. Spencer’s district, after the writing of that letter which you 
have spoken of, were referred to him without the $50 being deposited as 
required by the letter; and, if so, when they were first referred; how 
soon after the writing of that letter? A. They were referred to him, but 
when they were referred to him I cannot tell; I am unable to state. 

Q,. By whose order did you refer the petitions to him without the money 
being first deposited ? 

Judge Busteed objected to the question and it was waived. 

Q. After that letter was written were the petitions referred, without 
the payment of the $50, by the order of any person to you ; and if so, by 
whose order? A. The Judge ordered me verbally to continue the refer¬ 
ence of them to General Spencer. 

Q. Did he give you any orders with reference to referring them to John 
O. D. Smith? A. Not any further orders. 

Q. Did you receive any orders from any person in reference to referring 
cases to John O. D. Smith ; and if so, from whom ? A. After Blake left 
Montgomery, I received a letter from him telling me to refer petitions to 
Smith. 

By Mr. Woodbridge: 

Q. At what time was that? A. He left the latter part of July, and, I 
think, in about a week or ten days I received the letter. 

Q,. As near as you can recollect how soon after this letter of February 
13 was it that you referred cases to General Spencer without the payment 
of the $50? A. General Spencer, I think, came down to Montgomery 
upon the receipt of that letter, or within a very few days afterwards; and 
within a day or two I had orders to forward the petitions. 

Q. Did he see the Judge ? A. I could not say whether he saw him or 
not. 

Q. Was the Judge in Montgomery? A. The Judge was in Montgom¬ 
ery, I think ; no, I think he was down at Stan wood’s. 

Q. How far is that from Montgomery ? A. I was never there ; I am 
told it is about twenty miles. 

Q. You say that a day or two after General Spencer called, you received 
the orders to refer his petitions ; from whom did you receive those or¬ 
ders? A. I think when the Judge came up to Montgomery, he sent 
for me, and verbally told me to refer the petitions to General Spencer. 

Q. How long was that after General Spencer was at Montgomery? 
when he came down after receiving your letter of 13th of February? 
A. I think it was only a few days ; but I am not quite positive as to the 
time. 

Q. Do you not know that General Spencer had seen the Judge? A. I 
do not know. 

Q. Did the Judge say anything about having seen General Spencer? 
A. No, sir. 

By Mr. Semple : 

Q. Are you certain as to the time ? May it not have been as late as 
the 1st of April, or about the 1st of April, that General Spencer was 
there? A. I cannot speak positively as to the fact; I know it was not 
a great while after I wrote that letter. 


12 


Now. what had produced this sudden iesc’nding of this odcr to 
Spencer to pay in •• as required by law V' How came these require¬ 
ments of law to be dispensed will) ? The answer is, that Spencer 
had been to the Judge at Stan weed’s plantation and had made him 
a “ present" of $1,000. 

Spencer says (p. 391): 

I went to Montgomery, I think, al^ut the last week of March, or 
first week of April, 1868,'and 1 went down u, a limitation in Lowndes 
County, wheie Judge Busteed was stoj pn g. end g&'-'e him a dralt on 
Mobile for $1,060. 1 did not give it with any intention of fraud. 

There is no pretence that Spencer had been to see the Judge and 
got the order rescinded before the $1,000 were paid. 

Spencer made the Judge—who is rich, as is proven by Worrall, 
p. 289, and lives in splendor in Jamaica—see Kefier’s letter, to the 
Judge, page 202—a speech with his “present? and put the dona¬ 
tion on the footing of a charity, (p. 40) and promised to get J. O. I). 
Smith to make a similar donation, and did procure Burke and Bay 
to do so. 

The letter enclosing Burke and Day’s u present,” is found at page 
295. Spencer’s “ little speech,” at page 40. Spencer’s order given 
to the Judge is found at page 291. In the regular course of busi¬ 
ness the Judge’s endorsement would be on it. It hears no trace 
of having passed through his hands. It is dated March 31, 1808, at 
Tuskaloosa. Burke and Day’s letter is dated Huntsville, March 13, 
1868. Huntsville is in the extreme portion of North Alabama— 
Tuskaloosa and Montgomery in South Alabama. Now read the 
reason assigned by Spencer for making the “ present,” and his “ lit¬ 
tle speech,” and the letter of Burke and Day together, and see how 
they present the strange coincidence of different persons, at such 
distances apart, assigning the same reason— the poverty of the 
Judge —for the ‘-presents -v am | consider the still more strange 
fact, that the reason had no existence in truth. 

Bead the following contortions of Spencer, pp. 48 and 49: 

Q. You say you never had any conversation with Judge Busteed on the 
subject of fees; am I to understand you as saying that the conversation 
which you detailed yesterday, in relation to the Mississippi fee hill be¬ 
tween you and the Judge never took place?—A. Iam certain that I never 
had such a conversation. 

Q. As the one which you detailed in your first examination?—A. I am 
certain of that; l corrected that yesterday. 

By Mr. Eldridge : 

Q. What particular remark of yours do you now refer to?—A. In your 
examination of me you asked me if I h ai ever conversed with Judge 
Busteed in relation to fees, and I answered you that I might have done 
so incidentally. 

Mr. Eldridge. Your answer was that you had done so. 

Witness. But, on reflection, I am certain that I never did. 


13 




\ 

By Mr. Eldeidge : 

Q. In your exnmmat:?r the other day you stated, in answer to my 
question, that you had said to the judge ?»» two occasions that you trusted 
or hoped that he wou.d not lie hard on you about oho fs?s, and that he 
said he would endeavor to he reasonable?—A. That probably was my an¬ 
swer, but sinee then I am satisfied tnat that was a mistake, and that I 
ijever had such a conversation. 

Q. Did the judge say to you in any conversation that he did not think 
aou would ever complain about the tees?—A. I think I never had a word 
of conversation with Judge Busteed on the subject of fees; I am positive 
of it ; I talked with other registers and clerks, and with Mr. Worrell. 

Q. Did m»t the judge say to you that you would have n<* occasion to 
complain about li'is taxing the fees?—A.' I do not think he did ; I think I 
was entirely mistaken about that. 

Q. How should such an idea as that have gotten into your head ?—A. 
T1 le subject of fees had been a common conversation between the regis¬ 
ters, and you asked me the questions very rapidly and in rapid succes¬ 
sion ; I did not intend then to swear, nothing more than that I might 
have had such conversation. 

Q. Did you have no such conversation as that with any friend of Judge 
Busteed?—A. I have often talked with the registers and with Mr. Worrall 
about it. 

Q. Is it not possible that you had such conversation with Judge Bus- 
teeu's son-in-law?—A. I think it very likely that I had that conversation 
with Mi’ Worrall, and I know that I have often talked with Judge Bus- 
teed’s son-in-law, Captain Blake, in reference to fees ; he is the clerk of 
the middle district 

Q. Did you nave such conversation with Captain Blake?—A. I 
have no doubt in the world but I have had; still I am not positive 
about it. 

Q. Have you never talked with the judge at all about fees ?—A. I never 
talked with him about fees 

Q. Did you not tell the judge that if lie adopted the Mississippi fee bill 
it would make a great difference with you?—A. I never said anything of 
the kind to the judge ; T am certain I never conversed with him on the 
subject. 

Q,. What has refreshed your recollection on the subject ?—A. I have 
been thinking over the matter. 

Q. Have you been talking with Judge Busteed?—A. He asked me the 
questions as to when and where and in what connection I had talked with 
him. 

Q. Has lie refreshed your recollection on the subject ?—A. He has not 
refreshed my recollection. 

Q. Has the conversation with the judge refreshed your recollection?— 
A. It has not. 

Q. Has he changed your recollection on the subject?—A. I was not 
aware when I answered your questions that I was answering them in the 
way you say; you asked them very rapidly. 

Q. Did I not repeat tlies. questions over several times and in different 
forms ?—A. I am certain, now, and I swear positively, that I never did 
have,such a conversation. 

Q. Has your conversation with Judge Busteed since you gave this tes¬ 
timony caused you to change your recollection or opinion ?—A. I think 
not; the judge asked me after the examination was over when and where 
I had this conversation with him. 

Q. Where did you meet the judge?—A. We walked part of the way 
down the avenue. 


4 u 

Q. Did you change your recollection at once on the subject?—A. I did 
not; but since then I have been thinking the matter over. 

Q. When did you first make up your mind that you had no c?nversa- 
tlon with Judge Busteed on the subiect of fees 0 —A. Yesterday morning: 
I endeavored to recall to my auiiu me substance of all the conve r3&c*on X 
ever had with the Judge. 

Q. At the time the judge said von were very liberal to him, was there 
anything said about fe^s? ±\ r o, sir. 

Q The judge said, when you handed him this letter, that it was very 
liberal.—A. Yes ; he said it was a very liberal donation. 

Q. Was not that the occasion when you said to the judge that he must 
not be hard on you about the fees?—A. I am positive I never said so. 

Q. How is it possible that you made such a mistake as to attribute that 
conversation to the judge.—A. It is a subject which I had not thought of 
before, and I did not intend to say that I had such a conversation, but 
that I might on one or two occasions have made such a remark. I am 
willing to swear that to the best of my memory and belief, and I am pos¬ 
itive about it, I never did have that conversation. That is the evidence 
I wish to give. I endeavored to recall all the conversations I ever had 
on the subject, and I am certain that the subject of fees had never trou¬ 
bled me any. I never really had any idea that the judge would adopt the 
Mississippi fee bill. 

Q. Did you not talk with him about the difference between the two fee 
bills?—A. I am certain that I never did. 

Q. All the con versation you had on that subject was with Mr. Blake 
and with other registers.—A. Not all; I have talked with lawyers and 
with a good many people about it. 

Q. Can you state in distinct the conversation you had with Captain 
Blake on that subject?—A. I cannot go into details, or state distinctly 
the conversation. 

Q. Can you state the person with whom you had the conversation 
which you attributed to the judge?—A. I did state that; I thought it was 
with Mr. Worrall. 

Q. Do you recollect of any two distinct conversations that you had 
with Worrall in which such language may have been used?—A. I re¬ 
member more than two instances that I conversed with him on the sub¬ 
ject of fee bills ; in fact we never met during that time without talking 
about fees. 

Q. Then you have in your mind no two distinct conversations that may 
have been the conversations which you think you had with the judge?— 
A. I have not; I did not intend to swear the other day that I had two 
conversations. The answer which I intended, and which I supposed I 
was giving, was that I might incidentally have had those conversations, 
but since then I have been thinking over the subject, and I am certain I 
never had. 

And now read the following evidence of William Smith, Governor 
of Alabama, pages 180 and 181: 

By Mr. Semple: 

Question. Governor, will you state to the committee any conversation 
which you had with General Spencer in relation to the payment of any 
money by him to Judge Busteed.—Answer. I had two conversations with 
General Spencer upon that subject. 

Q. When was the first conversation?—A. I do not remember when it 
was exactly. 

Q. Give me the time as near as you can.—A. It was some time in July 
last. 


15 


Q. The first conversation ?—A. Yes. 

» Q. Do you remember writing a letter to me?—A. Yes, sir. 

Q. Dated Opelika, July 2, 1868?—A. Yes; Ido not remember the exact 
date, but I remember writing to you from Opelika. 

Q. That is your handwriting.—A. Yes. 

Q. Was the first conversation you had with General Spencer before 
that time or after?—A. It was after that time. 

Q. Will you please state when was the conversation and where was the 
conversation ?—A. The first conversation was some time after I wrote 
that letter, at Pizzari’s. In this conversation Gen. Spencer said to me 
that he had to pay Judge Busteed $1,000 in order to retain his business, or 
obtain the business to which he was legitimately entitled by virtue of his 
office. I had heard of it before, and I asked him if it was true; he told 
me that it was. I wrote that letter upon information I had received from 
others that such was the fact. 

Q. Please state, governor, all that passed between you and him in that 
conversation.—A. I do not remember particularly what was said. We 
talked a good deal about it. He spoke of it as a very great hardship upon 
him. He complained of Judge Busteed, and said that he could not help 
himself; he was in such a condition he was compelled to do it. We had 
a considerable conversation about it. I do not remember the whole of 
our conversation, of course. 

Q. Did he say anything of the character of the constraint under which 
he acted ?—A. I do not recollect that he did at the time. At a subse¬ 
quent conversation with General Spencer on the same subject, some time 
alter that, we talked more about it. I had repeated that conversation to 
others ; it was not told to me as a secret at all; there was no secresy en¬ 
joined upon me; I did not regard it as a confidential communication in 
any way. I had spoken of it to very many others in the city of Mont¬ 
gomery. Subsequent to that, a gentleman in the city of Montgomery 
told me (and that was the reason why I came to have a second conversa¬ 
tion on the subject with General Spencer) that he had met General Spen¬ 
cer at a party at Miss Glasscock’s, in Montgomery, and had had some 
conversation with him with reference to the statement which I had made 
that he had told me that he had been obliged to pay this sum of money to 
Judge Busteed, and, said he, “My opinion is that General Spencer is not go¬ 
ing to stand up to what he said to you.” I expressed my astonishment at the 
statement; but very little was said. The next day Gen. Spencer came into 
my office. I called his attention to it, and told him, “I understand you 
will deny what you said to me about Judge Busteed.” “No,” said he, 
“what I deny is that I entered into any corrupt bargain with Judge Bus¬ 
teed ; but I considered that what I did I was compelled to do ; for I had 
no way to help myself, and I paid him the $1,000 just as I would have 
paid my money or given my pocket-book to a robber with a pistol at my 
breast.” That is, in substance, what he said to me in the second conver¬ 
sation. That is all, except that we talked considerably in the same strain. 
Mr. Dalton, my private secretary, was in the room at the time. I do not 
recollect whether any other persons were present. 

Q. Had you sent for General Spencer, or did he come of his own ac¬ 
cord, to your office?—A. I think he came of liis own accord ; I do not 
remember sending for him. 

Q. What office is it you refer to?—A. The executive office at Mont¬ 
gomery. 

Q. You are Governor of the State, are you?—A. Yes, sir. 

And read J. O. D. Smith’s account, pages 173 and 174, how Spen¬ 
cer complained that he had been black mailed, and how lie advised 
Smith to submit to it; and remember that charges icere preferred 
against Judge Busteed before he got Smith’s money , and that he dared 
not use Smith’s cheeky but did not return it. 


16 


Can Spencer’s transaction be mistaken ! can charity cover it! 

The full discussion of this matter is left to Mr. Semple; but* 
enough has been said to show that it falls under the inhibition of 
the statute against bribes , presents or rewards to Judges, of April 30, 
1790, found 1 Stats, at large, 115, 1 Brightly’s Digest, j>. 212. 

The immediate object of the discussion of it here, is to get at the 
undoubted predicate that Judge Busteed takes money from the offi¬ 
cers of his court, and takes it upon an assignment of false reasons 
for its presentation. The especial application to be now made of 
the fact is, if Judge Busteed took money from officers who bore no 
near relations of friendship to him (as it is shown Spencer and Day 
and Burke did not) under the above circumstances, what are we to 
infer became of large sums of money robbed from suitors, by the 
Judge’s legerdemain, as will now be shown! 

THE CASE OF MORRIS AND THE FIVE THOUSAND DOLLAKS GOT BY 
JAKE WILSON FOR JUDGE BUSTEED. 

Jacob Wilson is an ignorant, vulgar Russian Jew, who cannot read 
or write, and speaks English with a strong accent. He came with the 
Judge in 18G5, and continued to act as his menial and body servant. 
He became deputy of Jno. Hardy, the Marshal; he cried all the sales 
made by the court, and received large special fees as auctioneer, on 
the allowance of the Judge. He received as auctioneer, by Judge 
Busteed’s allowance, on motion to retax cost in the Natchez cases, 
$1,430 10. (See P. Hamilton’s deposition, and the printed state¬ 
ment given in evidence by him.) Judge Busteed had rendered a 
judgment against Josiah Morris, in Montgomery, for about $30,000, 
(which now stands reversed by the Supreme Court of the United 
States for the want of jurisdiction.) Morris gave bond, and applied 
for a supersedeas within the time prescribed by law. It was refused 
on the ground that he had taken a writ of error, (which he had a 
right to take,) and should have taken an appeal, (p. 5.) Morris, 
upon being informed of the Judge’s objection, tiled with the clerk 
(the Judge having gone to Mobile) an appeal bond within the time 
required by law to obtain a supersedeas, (p. 5.) The judgment 
was rendered December 17, I860, (p. 1.) The appeal bond was tiled 
with the clerk December 27, 1806, (p. 5.) Judge Busteed put his 
initials to the bond December 29, 1800, the day it was presented to 
him in Mobile. 

He came to the Judge with his sureties at Mobile. The Judge 
advised him to settle the case with the District Attorney, J. Q. 
Smith. Morris said he would pay $5,000 to settle it. The Judge 
promised to meet him in Montgomery, saying—“Mr. Morris, if you 
are willing to do that, and Mr. Smith is not willing to allow me to 
settle it for the $5,000, 1 will grant you relief, as you have asked for 
it, by giving you the bond.” The bond was to be made at once and 
left in the Judge’s hands. As Morris left the Judge's room to get 
his bondsmen, Jacob Wilson went with him. Judge Busteed called 
Wilson back and had a short interview—he returned and told Mor¬ 
ris the Judge wanted the $5,000, then Morris paid it to Wilson, who 


17 


Rnys lie kept it in obedience “to the eleventh commandment“If 
you have got anything keep it.” (p. 298.) See Morris’, Powell’s, a d 
S. F. Pice’s depositions. 

Omitting details, tin Judge went to Montgomery, pretended to 
wish to grant the stipe sedeas to Morris, bur J. Q. Smith, then Dis¬ 
trict Attorney, objected, and the Judge went to New York. (See 
S. F. Pice’s deposition.) The sequel was, Morris lost Ids $5,000, 
laid the judgments to pay, and when he got his ease reversed, 
found that nearly half the money, under pretence of an order of 
distribution, secretly made by tiie Judge in behalf of a secret in- 
lormer, had gone into the pockets of J. Q. Smith and Lawrence 
Won all, (except a little over $>,000 given the so-called informer.) 
See the record of this case on tile, and see McCroskey’s evidence p. 
130 to 133. 

Let it be noted, too, that the money which had been collected in 
this case was deposited in the National Bank at Selma, which had 
failed, and that J. Q. Smith got the money from * the proceeds of 
the Freed men 1 s Bureau sales paid by Walsh, Smith & Co., the pur¬ 
chasers at those sales. (See evidence of Pobt. W. Smith, of the house 
of Walsh, Smith & Co., taken in Mobile. McCroskey p. 130.) The 
United States got nothing. 

This narrative very fairly introduces to the committee J. Q. Smith 
and his relations to the Judge, but he will be noticed hereafter. 
Let us proceed with Jake Wilson. 

Wilson says (p. 208) that he told the Judge, the next day, that 
Morris had given him $5,000. Busteed considered this an attempt 
by Morris to bribe him. (See deposition of Salfold p. 347 to 350.) 
lie stated, to Salfold the time and place, and such facts attending 
the transaction as to leave no doubt that he was privy to the act. 
He told Salfold that Wilson still had the money, and asked advice 
as to the proper course he should pursue. Saffold advised Busteed to 
require Wilson to pay back the money to Morris, &c. To this, 
Judge Busteed, disclaiming that he had anything to do with Wil¬ 
son’s getting it, said he did not propose to have anything to do with 
the refunding of it. (p. 347.) In this conversation he represented 
Wilson, “as a person in whom he had great confidence, and who 
was very faithful to him,” (p. 347,) and said “he is as ia tliful to me 
as my wife.” p. 350.) If this be so, then Judge Busteed got that 
money—for it was paid to Wilson for the Judge. (See Morris’ dep¬ 
osition.) That any sane man should have given $5,000 to an igno¬ 
rant, contemptible fellow like Jake Wilson for his influence with the 
Judge will not be believed. Again, the money was paid January 
17, 1807, (p. 4.) The conversation with Judge Salfold was in the 
latter part of January or first part of February, 1807. Judge Bus¬ 
teed then told Judg-e Salfold that Wilson still had the money or 
that it teas not spent, (p. 347.) Now, how did he know this if he was 
not participating in the act ? 

Judge Busteed’s visit to Washington city, when he had the inter¬ 
view with Judge Saffold, was to prevent Hardy, the Marshal—who 

E 


18 


had Wilson for a deputy—from being turned out of office on 
charges of corruption, based in part on accusations from General 
Swayne, then military commander of Alabama, (see Swayne’s evi¬ 
dence) and in part on proof by affidavits found from pages 119 to 
121 of the printed proofs, which show that Hardy had furtively 
appropriated a large part of 239 bales of cotton, which were in his 
custody as Marshal, and which affidavits Judge Busteed saw when 
in Washington. (See evidence of Herndon, p. 125, and of C. R. 
Rice, taken in Mobile.) See evidence of Gen. Swayne, p. 157, 158, 
159 and passim. 

After Hardy was removed—after Judge Busteed knew that Wil¬ 
son had got this $5,000—he (Judge Busteed) applied to Healy, who 
became Hardy’s successor, to appoint this same Jake Wilson his 
deputy, (p. 362) but, making a virtue of necessity, came to Healy 
in a day or two, and told him he had better not make that appoint¬ 
ment. (p. 363.) Wilson was still attending on the Judge, (p. 262.) 

But more thar^this : Remembering that Morris paid Wilson the 
$5,000 on January 17, 1867—that Judge Busteed knew it immedi¬ 
ately } that in the latter part of January or early in February , he 
spoke to Judge Saffold about it in Washington ; that Healy came 
into the Marshal’s office as Hardy’s successor about April 1 , 1867 5 
(p. 362;) that it was soon after Healy came into office that the 
Judge applied to have Wilson appointed his deputy, and withdrew 
the recommendation under a silent rebuff 5 (p. 362, 363 5 ) let us turn 
to Mr. Manning’s evidence at foot of p. 238 and 239. It reads: 

As solicitor I procured a decree, at the spring term of the Court in 
1867, (I think in April,) for the foreclosure of a mortgage in the case of 
Sanford against Herrin, executor, and others; and a sale of the mort¬ 
gaged property was ordered to be made by the Clerk of the Court as 
master in chancery. The debt amounted to $22,000 odd. The property 
was sold on the first Monday in July, 1868. Mr. A. AV. Trimble (mis¬ 
print for N. AY. Trimble) was the clerk, and acted as master. Judge Bus- 
toed was, at the time, at the Battle House, wounded and incapable of 
leaving his room. 

Q. From the wound he received from Martin ? 

A. Yes, sir. The sale was made by Jacob AYilson, as auctioneer- a 
man who was an indifferent auctioneer, and who spoke the English lan¬ 
guage rather badly. He did nothiug in the way of having the property 
advertised. I prepared the notice myself, which was signed by Mr 
Trimble and published regularly. This man AYilson acted as auctioneer* 
He was engaged 15 or 20 minutes in making the sale. The property sold 
for $20,840. My client at the North desired to have the amount coining 
to him in a bill of exchange, and that arrangement was made. I sent to the 
Clerk to get a copy of the bill of costs, and this bill which I now pro¬ 
duce was sent me. For services as auctioneer there is a charge of 21 per 
cent, on $20,840, amounting to $521. This was in addition to all o“ther 
fees allowed by law to the Master, who has charged his own special fees 
at $942,30. I insisted with Mr. Trimble that the auctioneer’s fees should 
be paid out of his commissions, and that he ought not to have employed 
Mr. AYilson as auctioneer and allowed him 2J per cent. To this he replied 
that he had to do as Judge Busteed required it in such cases This is the 
same Jacob AVilson that has accompanied the Judge, I believe as servant 
on all his visits to Mobile except one, I think, and whom I saw standing 


19 


at his office door in New York, and who invited me to the Judge's office 
there. 

Q. Subsequently, or before that time ? 

A. Before it. I think. 

If Trimble, the Clerk, had not asserted the fact, could we doubt 
but that Judge Busteed had this man Wilson to make the sale? 

Hot only do we find Wilson executing the judicial sales of the 
Court, but we find Worrall, (the holder of almost all the offices in 
the court,) who stood in the nearest relations to the Judge, (p.273,) 
and who was appointed Register in Bankruptcy the first of Decem¬ 
ber, 1867, (nearly a year after Wilson got the $5,000 from Morris,) 
putting large amounts of goods, turned over by bankrupts, into 
Wilson’s hands, and allowing him to have the custody of them—in 
one case, at least, for near a month—contenting himself with the 
security furnished against his stealing them, with the fact that u he 
took an oath for the faithful performance of his duty.” (p. 281.) 

Jacob Wilson will incidentally appear again in the discussion of 
other charges. For the present we will leave him with the follow¬ 
ing account of him and the Judge by three witnesses: 

Gen. S wayne (p. 157) is asked: 

Q. Did you know Jacob Wilson. A. Yes, I think I did; that is to say, 
there was a man who acted as the Judge’s body servant and sort of 
Deputy Marshal at Mobile who was called Jake, and my impression is 
that he was called Jake Wilson. 

Judge Cuthbert (p. 72) shows that he was the body servant of 
the Judge, in constant attendance upon him, and doing menial ser¬ 
vices for him. 

Wilson conducted the sale of the 454 bales of cotton, made under 
the order of the Judge, before referred to, and found at page 75, 
entitled u Charles C. Newberry vs. 66 bales of cotton,” &c. For cry¬ 
ing the sale the Judge allowed to Wilson $1,430, under the name of 
auctioneer ! (See p. 110 of printed evidence.) 

Peter Hamilton,(p. 86,) in stating the grounds on which he moved 
to set aside the sale, mentions that it was conducted by Jacob Wil¬ 
son, of whom he thus speaks: “ As I conceived, a very incompetent 
person was appointed to conduct the sale.” u He appeared to be a 
servant of the Judge.” (p. 94.) 

That Wilson was a body servant and factotum of the Judge, see 
further evidence of Judge Dargan, Judge Jones and J. Little Smith, 
taken in Mobile. 

THE CASE OF 239 BALES OF COTTON CLAIMED BY NUNN & THOMP¬ 
SON FOR THE PLANTERS’ FACTORY. 

The Planters’ Cotton Factory, of Autauga, purchased from variou* 
persons during the war, cotton for carrying on their operations. 
Some small purchases had been made from the so-called Confederate 
Government. 

At the close of the war the factory ceased business, and deter- 


20 




mined to sell its stock on hand. This stock was put in order for 
shipment to Mobile and sale. About six bun 1ml of the bales \yere 
seized up the country by the Marshal, on a 1 ilx 1 by the United States, 
from the U. S. District Court at Montgomery, and had been stipu¬ 
lated for by the factory, and this case is not yet disposed of. 

This cotton came to Mobile. The first that came, embracing that 
bought of the Confederate States, had been shipped to Liverpool. 
James M. Tomeny, the Treasury Agent in Mobile, seized the cotton 
in question. (230 bales.) The propriety of the seizure was heard 
on proofs by the Secretary of the Treasury at Washington, and the 
cotton was released by Mr. Tomeny on the order of the Secretary. 
In the meantime the 230 bales had again been seized on libel by the 
United States in the U. S. District Court of Mobile (the libel in 
Montgomery still pending). 

The cotton had been put in good order and rebaled before it was 
sent to Mobile, and was safely stored, in such good order, in a repu¬ 
table warehouse in Mobile, which was fire proof. Hardy, the Mar¬ 
shal, changed it to another warehouse, further from the river, and 
it was taken to Cleveland’s pickery, where the bales were cut and 
half the cotton taken out and put up in other bales marked differ¬ 
ently. The bales so reduced, with other inferior cotton, were then 
sent to the other warehouse, under pretence that it was the same 
cotton under seizure. 

John Hardy and Jake Wilson had the care of the cotton, and the 
pickery man altered the bales by instruction of the Marshal or his 
Deputy. See the positive proof of this fact by C. 1C liice, taken 
at Mobile; see, also, Theodore Nunn’s evidence, taken at Mont¬ 
gomery; W. N. Thompson’s, page 213; Jones M. Withers’, page 
247, (printed evidence,) and the affidavits found in Herndon’s evi¬ 
dence, 118 to 122. See, also, Withers’ evidence generally. 

The following facts are beyond dispute: 

That the cotton came to Mobile in good order and was safely and 
securely stored in a live-proof warehouse. 

That its removal to another warehouse created large additional 
and unnecessary expense. (See foregoing, and also 1\ Hamilton’s 
evidence.) 

That it was removed to a more distant warehouse. 

That it was stolen as stated above. 

The proposition is that the larceny was the act of John Hardy, 
Jake Wilson and Judge Busteed. If we follow the circumstances 
they will establish the fact. 

Cotton is always insured in a named warehouse. This cotton was 
insured in the original warehouse. Its removal forfeited the in¬ 
surance. 

Cotton pays storage at so much per month or less. Its removal 
doubled the warehouse expenses. 

The drayage and handling in removal created other considerable 
expenses. 

The original warehousemen were respectable and responsible. 


21 


There could, therefore- have been no good reason for changing the 
warehouse. 

Even it the cotton had not been in good order before, it certainly 
should have been after it went through the pickery, as the only bus¬ 
iness of the pickery is to put it in good order. 

Cotton in good order and in a tire-proof warehouse is not liable to 
damage or waste, as every person knows. 

There could, therefore, be no reason for selling it, pending the 
suits. 

If the substituted cotton should remain, it would be a standing 
witness of the larceny committed. If sold, and taken off by a pur¬ 
chaser, it would cease to tell tales. 

The first step—and that by John Hardy—was a motion to the 
court to sell the cotton , and to employ Alexander McKinstry, for a fee 
paid by him , to get an order of sale from the court. (Hardy’s evi¬ 
dence, pp. 372, 373.) 

That the proceedings in respect to the sale of this cotton may ap¬ 
pear, the following evidence of Thomas H. Herndon on the subject 
is inserted at length : 

The first active part I took in the case was on the 21st of May, 1866; I 
think on that day, about 9 or a quarter-past 9 in the morning, I received 
a written notice, signed by Lawrence Worrall, acting district attorney, 
informing me that at 10 o’clock that morning a motion would be made in 
the district court for the sale of that cotton. At 10 o’clock I appeared in 
court—my recollection is that it was stated in tlie notice, or if not in the 
notice, in the motion, that it was made on the ground that the cotton 
was perishable or deteriorating—at 10 o’clock I appeared in court; the 
motion was called, and I stated that on account of the shortness of the 
notice I had had no oppoitunity to consult with our cli< nts and get up 
counter testimony as to the condition of the cotton, and I desired that the 
motion should lie over until the next flay, or some future time, when I 
could be prepared to meet it. Judge Busteed seemed reluctant to grant 
the indulgence, but did grant it until the next morning at 10 o’clock. At 
that time Judge William G. Jones (being, in fact, the leading counsel in 
the case) came into court and made a counter-motion, which is on record, 
I presume, to dismiss the case for want of jurisdiction, or, in case that 
motion was decided against the claimants, to be allowed to stipulate for 
the cotton. To enable the committee to understand the matter, I will 
have to state that there were a great many exceptions filed to the libels, 
and, amongst others, against the jurisdiction of the court to entertain a 
libel of that sort and in that case. The only testimony introduced on the 
part of the Government. I believe, was that of John Hardy, the marshal, 
and Jacob Wilson, deputy marshal, who were examined, stating as an 
opinion from the condition of the cotton, the necessity for the sale, 
merely saying, “it ought to be sold.” Judge Jones, in presenting the 
question of jurisdiction, began to argue the case before the court, and in 
the course of the argument brought the attention of the court to the fact 
that this identical cotton was already embraced in a previous libel, filed 
in the court of the middle district at Montgrmery. He then produced a 
duly authenticated transcript of the record of proceedings in that case in 
the middle district. Judge Busteed at once, without inspecting the re¬ 
cord or asking for it at all, said he had no difficulty in deciding that there 
was no case pending in the middle district; that he had not been in the 
middle district for a certain length of time. 

Q. Was there, in fact, any case pending in the middle district in refer- 


22 


i 


ence to this same cotton ?—A. I have not now a copy of those proceed¬ 
ings, and only speak from memory; there was, however, a proceeding ' 
embracing the same cotton. My information, which is from hearsay, is 
that a libel had been filed for something over 600 bales of cotton seized in 
the middle district. The cotton was bonded by the Planters’ Factory or 
by Nunn & Thompson, and 239 bales of that same cotton, after being 
bonded, was shipped to Mobile. When it arrived at Mobile, J. M. Tom- 
eny, then agent of the United States -Treasury for that district, seized the 
cotton, and pending its seizure, and while in possession of Tomeny, the 
libel of information that I have spoken of, was filed in Mobile. After 
the question of the pendency of a suit in Montgomery for the same cotton 
was disposed of in the manner I have described, Judge Jones brought to 
the attention of the court the fact that this cotton had been seized by Mr. 
Tomeny, the treasury agent; that all the facts had been submitted to the 
Secretary of the Treasury, who had passed upon them and had ordered 
Mr. Tomeny to release the cotton. Judge Busteed asked him if he had 
the order of the Secretary of the Treasury; Judge Jones told him, I think, 
that he had a copy of it. Judge Busteed told him to read it; he read it. 
Judge Busteed then told him to pass the paper to the court, which he did. 
The judge then told him to take his seat; and said the decision of the 
Secretary of the Treasury, so far from commending the case to his favor, 1 
absolutely disentitled it to any favor whatever at the hands of the court. 
Judge Busteed then commenced the delivery of a very severe and pointed 
rebuke upon the President and his cabinet, and particularly upon Mr. 
McCulloch, saying that, “If the cabinet would attend to their business, 
and Mr. McCulloch to his greenbacks, the country would be in a better 
condition ;” that “Mr. McCulloch had undertaken to decide, more than a 
thousand miles from where the case was pending, by telegraph, from rep¬ 
resentations and recommendations obtained,” (as he intimated, in terms,) 

“by bribery.” 

By Judge Busteed : 

Q,. In terms, did you say ?—A. No, but in substance. He did not say 
(use) the word bribery, but that was the impression made upon my mind 
by his remarks. I did not understand the language used as applied to 
Mr. McCulloch, but to some one else. He said he “would teach the Pres¬ 
ident and his cabinet that he was as independent of them as they were of 
him;” that “they could not interfere with the administration of justice 
in his court by proceedings of that sort.” These remarks of Judge Bus¬ 
teed covered some 15 minutes, perhaps, in reference to the cabinet, and 
especially to Mr. McCulloch. After Judge Jones had concluded, I rose to 
say something in the case, and began to discuss the exceptions, and show 
that the exceptions were well taken, and ought to be a consideration to 
induce him not to order the sale of this cotton. He told me he had no 
doubt about the jurisdiction of his court in the premises, and that he did 
not desire to hear anything on the subject of jurisdiction or exceptions * 
he wanted to hear some reason why the cotton should not be sold. I then 
directed my remarks to that point. He stopped me directly and said * 
“Mr. Herndon, my mind is infallibly made up on this subject; this cot¬ 
ton must be sold. ” He then said it was his invariable rule, in suits 
where the United States were interested, to order the sale; “but,” said 
he, “if you desire to make a speech, I will hear it.” I told him I did not 
desire to made a speech if his mind was infallibly made up, and took my 
seat. He then called my attention to another suit in which I was inter¬ 
ested, and which, he said, might form an exception to his ruling. In the 
case of the 230 he made the order that the cotton should be sold after ten 
days’ notice by publication in the newspapers ; that was on the 22d of 
May. 


25 


By Mr. Eldridge: 

Q. Did he hear any argument upon the motion at all ?—A. None except 
what I have stated. The counsel for the United States, Mr. Worrall, I 
think, did not say a word. 

Q. Did you offer any evidence in regard to the situation of the cotton ? 
—A. We offered evidence tending to show that the cotton was in a fire¬ 
proof warehouse, in a dry, safe place/where cotton was usually stored in 
Mobile, and I am not sure whether anything was said about its being in¬ 
sured, or whether the fact was that it was insured or not; my impression 
is that the cotton was under insurance by Nunn & Thompson, and that 
we offered to show that fact; I am not positive. 

Q. What was, in fact, the condition of the cotton?—A. I never saw the 
cotton, and I do not think we showed, on that occasion, anything about 
the actual condition of the cotton ; we ohly showed its condition at the 
time it was seized. The proof \*as that when the cotton w'as seized it was 
in good condition. 

Q. What was the pretence or proof on behalf of the United States show¬ 
ing the cotton to be in such a situation as necessitated its sale?—A. The 
proof of the witnesses, Hardy and Wilson, only ; their testimony was 
very brief. They alleged that the cotton was in a perishable and wasting 
condition ; I do not remember from what cause. My recollection is that 
Mr. Hardy said that in his opinion it was necessary to sell the cotton to 
prevent its deteriorating. If he stated any specific circumstance about it 
I do not now remember it. 

Q. Was it shown that any calamity or casualty had happened to the 
cotton.—A. No, sir; nothing of that sort was shown; there was no single 
fact shown that I remember ; we showed, as I said, that it was in a fire¬ 
proof warehouse. I do not think the examination lasted more than 15 
minutes altogether. That was the last I heard of the cotton until about 
the 20th of June, 1866. On that day I called on Mr. Worrall, the acting 
district attorney, seeing that the cotton was advertised for sale, and asked 
him if the cotton was to be sold. He informed me that he had for¬ 
warded the proceedings in the case to Washingtan city, but had re¬ 
ceived no reply. 

By Mr. Smith : 

Q. How did he come to forward the proceedings to Washington city ?— 
A. He had been ordered, by a telegraphic dispatch from the Attorney 
General, to stop proceedings in the case, and forward all the papers—I 
think the dispatch read—“to Washington.” Mr. Worrall said to me, in 
the same conversation, that Judge Busteed had called his attention to it, 
and asked him if he had received anything from Washington city upon 
the subject; that he could not allow the delay of the sale any longer, and 
that he (Worrall) had forwarded a report of the proceedings, but had re¬ 
ceived no reply. On the 27th of June—the sale having been advertised to 
take place on the 28th—John Hardy, the marshal, happened into my of¬ 
fice, and I mentioned the fact to him that I saw the sale was advertised, 
and asked him if he intended to proceed with the sale. He replied that 
he had no orders to the contrary. I asked him if he had received a dis¬ 
patch from the Attorney General ordering the sale not to be made—a sec¬ 
ond despatch. He told me that he had not received any dispatch. I then 
exhibited to him a copy of a despatch which had been forwarded to us by 
Waterson & Crawford, of this city. He said he had not received the dis¬ 
patch, and that unless the sale was postponed by Judge Busteed’s orders 
it would be proceeded with. In order that nothing might be left undone, 
I made a copy of the despatch, and had it sent to Mr. Worrall. Whether 
it was served upon him or not I do not know; it was sent to him by a lad 
in our office named George Haig, who was the errand boy of the office. 


24 

On the 28th the cotton wad sold—at least that is my information ; T did 
not attend the sale. 

By Mr. Eldridge : 

Q. Do you know the cotton was sold ?—A. Only from hearsay I state it 
to have been sold. I have examined the ncords and the files of the dis¬ 
trict court in this case, t > see if there was any repo t of the sale, but I was 
unable to tind any report on the fites; intact I found the papers them¬ 
selves in rather a confused state, not in a separate package, and the libel 
itself was not on the tile, that I could tind. I examined the records and 
minutes of the court to see if there was any report made, but I did not 
find any. I made this examination about the 1st or 2d of July, 1808, as I am 
able to state by a memorandum made at the tune. I also went into the 
office of General Heaiy, the marshal, to see if there was any report of the 
sale there, but lie had no memorandum of it on his books. He said it 
would probably be ou the books of Mr. Hardy, who was not then in the 
city. After the 28th nothing more occurred in court in regard to the case 
until the 22d of December, 186(3, when I was sitting in court, and J. Q. 
Smith, district attorney for the middle district of Alabama, being there 
in court, called up the case of 600 and odd bales of cotton. I heard the 
call made casually, and, supposing I had no interest in it, paid no atten¬ 
tion. The motion was to tra nsfer the case to the district court of the mid¬ 
dle district of Alabama. Judge Busteed, turning the leaves of the docket 
as if referring to the case, asked if the district attorney of the southern 
district consented. Something was said about that—I do not remember 
what, paying no attention to the matter. Mr. Martin, I think, was then 
district attorney, and 1 do not know whether he was pre ent in court or 
not. Mr. Percy Walker, an attorney, sitting by me when this order was 
made, asked if that was not a case in which I was interested. I told him 
I was not interested in any case of that title. For gieater caution, how¬ 
ever, 1 got up and asked J udge Busteed ii that was a ease which had orig¬ 
inated in Montgomery m winch 239 bales were involved. I made this 
inquiry of the court before another case wrs called ; stated /liat, as the 
case was not called by its title, I did not recognize it as the one in which 
I was concerned, or 1 would have opposed tne motion to transfer, and 
asked that the order be set aside so mat 1 could be heard, lie referred 
me to J. Q,. Smith, who said it was. I then recognized it as the case of 
the 239 bales. The order for the transfer had, however, been made. The 
Judge saicl I could make a motion to set aside the order, and doubtless the 
district attorney would consent to its being heard. I then asked that it 
might be postponed until the next day, Judge Jones, tiie principal 
counsel in the case, not being present. Tne next day the motion to set 
aside the order of transfer was called up, and sustained by Judge Julies m 
a few remarks. J udge Busteed heard what he had to say, and J. Q,. Smith 
opposed the motion to set aside the order, upon the grounds that (he 
court had no jurisdiction in the case, and read a decision from Howard’s 
reports, in ail Illinois case, which showed very distinctly, as I understood 
it, that the court had no jurisdiction. The court, after hearing what he 
had to say, refused the motion to set aside the order, stating that the ar¬ 
gument of Judge Jones would be a very good showing in opposition to 
granting the order originally, but a very poor showing to set aside the 
order wnicli had been made. I remarked to J. Q,. Smith that if the court 
had no jurisdiction, as I believed it had not, I thought, instead of being 
transferred it ought to have been dismissed. 

Q,. Did the court hold that it had no jurisdiction?—A. Judge Busteed 
did not decide that; he only referred to the argument of Judge Jones, 
that lie had been taken by surprise by the motion,'and asked that the or¬ 
der to transfer might be set aside. We had raised the question of jurisdic¬ 
tion in support of tiie exceptions we took ou the mo Ton to seli, on the 


25 


ground that this was a part of the 600 and odd bales which had been libeled 
in Montgomery, and the Judge said he had no difficulty in deciding that 
he had jurisdiction, This was on the 22d day of December, 1866, the cot¬ 
ton having been sold on the 28th of June, preceding. 

By Mr. Smith : 

Q. Was there any such case on the docket as the 600 and odd bales which 
was called when the motion to transfer was made?—A. There was nosuch 
case there which I knew by that title ; we had none of that title. If I 
ever knew I have forgotten how mi iy bales were involved in the case in 
Montgomery wnich covered these 23 ) hiles, and the case being called by 
J. Q,. 8 n i til as the United .States vs. 60 J and odd bales instead of 239 bales, 
misled me. The title of this ca-.e on the docket was the United States vs. 
230 bales of cotton. 

Q,. Wa3 the fact brought to the attention of the court when you made 
the motion to set aside the order, that the case had been called by the 
wrong title ?—A. It was. 

Q,. Was the fact denied by the other side?—A. No, sir. 

Q,. Did the Judge recall it?—A. He did not say whether he would or 
not; he did not deny it, nor did Mr. Smith, and the motion to vacate the 
order was made immediately after the order was granted. I should not 
have noticed the case at all If Mr. Walker, who sat by me, had not called 
my attention to it. Nothing further occurred in regard to the case until, 
according to the minutes of the court, the 21st of May, 1867, when Mr. 
ltufus F. Andrews rose in court, and calling the attention of the court to 
it, stated that the case had been transferred to Montgomery in his absence 
without his consent; that he appeared to represent the United States, 
and asked that the case be reinstated on the docket in Mobile. I was 
present in court. Judge Busteed asked me if I had anything to say why 
the motion should not be granted. I said I had opposed the transfer orig- 
inally, and of course had nothing to say in opposition to the case being 
reinstated. 

Q,. In the meantime J. Q. Smith had been removed from his office of 
district attorney?—A. I so understood ; the order to reinstate the case hav¬ 
ing been grunted, Mr. Andrews asked that the case be set down for trial 
the next morning; I stated that it would be impossible for me to try the 
case the next morning; that I had supposed it would be tried, if at all, in 
Montgomery, and had sent all the papers in the case to Montgomery; 
that the witnesses were at a distance, and that it would be impossible for 
me to get ready. Judge Busteed replied to that, that the case had never 
been transferred, and that it was my business to know it; but Mr. An¬ 
drews said he appreciated the condition of the case, and consented for 
it to be laid over until the second day lor trial, and it was so laid over. 

Q,. How far were Nunn & Thompson, the claimants, from Mobile at 
that time?—A. They lived in Autauga county, I suppose 200 miles from 
Mobile. I do not know the distance, probably half a day’s ride, from 
Montgomery, and not connected with Montgomery by railroad or tele¬ 
graph, so far as I am aware of; I have never been there. The case, how¬ 
ever, was not tried, and I have no recollection of its ever being called 
from that day to this, and do not know what became of it. I examined 
the docket in the front part of the book, where I should expect it to be 
found, and asked the c.eik what had become of it. He turned to the 
back part of the book, and there I found it entered with other cases, 
which the clerk said were cotton cases. It has certainly never been 
called in my presence. 

Q,. Look at the affidavits now shown you, and state if you have had any 
conversation about them with Judge Busteed.—A. I never showed these 
affidavits to Judge Busteed ; copies of them were forwarded by me to Wa- 
tersou A Crawford,our correspondents in Washington city, to be laid before 
the Attorney General. Some time after the transaction I have been speaking 

F 


26 


of occurred, (the date I do not remember,) I happened in court one day 
when there was a case pending in which the fil m of Hurtel & Hammond 
were parties. After sittiu g down in court I soon discovered the natu re of the 
case, and thinking it might throw some light as to what had become of 
this cotton, I listened to it; I was about starting out of the court-room 
when Judge Busteed called me to the bench and asked me if I was not 
counsel in the case of 239 bales of cotton ; I told him I was; he told me 
he had seen in Washington the affidavits I had sent there on the subject, 
and that they had had a large influence in causing the removal of Mr. 
Hardy; he said the affidavits very clearly showed the substitution of the 
cotton, and that if Mr. Hardy was guilty of it “he ought not only to have 
been removed, but hung; ” but that he was satisfied that l\Ir. Hardy was 
not guilty; that “he had not been concerned in the substitution ;” and he 
had no doubt I would be glad to see Mr. Hardy vindicate himself; and 
following this was some conversation highly eulogistic on his part of Mr. 
Hardy. I told him I would be glad to see Mr. Hardy, or any other public 
officer, vindicate himself from so grave a charge. He then said that he 
had the most indisputable, or incontrovertible (I do not remember which 
word was used) evidence that Mr. Hardy was not guilty, and that if I 
would make amotion like the one then pending in court, we would get 
at the guilty parties. I simply declined to do anything in the matter. 
He said he wished to see me again on the subject, but did not. 

Q. Why did you decline ?—A. I did not state my reasons to Judge Bus¬ 
teed. I had several reasons. In the first place, the United States had 
seized the cotton, and I considered it as much the duty of the court as it 
was of the claimants to ferret out such a proceeding; in the next place, I 
did not believe that Hurtel & Hammond were guilty of the charge ; they 
were warehousemen, and were men of as good standing as any in Mo¬ 
bile. 

By Mr. Eldridge : 

Q. In this conversation with the judge at the bench, when he spoke of 
ferreting out the guilty parties, did he intimate who he thought was 
guilty?—A. No, he did not, except in this way: Hurtel & Hammond 
were the parties against whom the motion was then being tried in court, 
in a similar case where cotton had been substituted, and he said that if a 
similar motion was made by me in the case of the 239 bales, we would 
get at who were the guilty parties. 

By Mr. Smith : 

Q. Did I understand you to say he announced beforehand that John 
Hardy was not guilty ?—A. He said he had “ indisputable, or incontro¬ 
vertible, evidence that John Hardy was not guilty of the charge,” and 
then said a good deal in his praise as a public officer and as a man. 

Q,. He made no proposition to inquire as to whether John Hardy was 
guilty or not ?—A. The only proposition he made I have stated, and 
when I left the interview was suspended, I supposed to be resumed at 
another time. 

Q. Do you say that case has never been tried ?—A. Not to my knowl¬ 
edge; I have not been in Judge Busteed’s court regularly for some time, 
and cannot say that it has not been called. 

Q. Do you know what became of the proceeds of the sale of this cotton? 
—A. I do not. 

To fully understand the force of the foregoing testimony, let us 
look at facts in connection with those attending the Jones M. With¬ 
ers’ cotton. 

In 1866 Withers, as factor of a Mr. Williamson, had received for 

L .. • •' ... '•. . . .. ... . _ , 


27 


sale fifty-seven bales of cotton, and Hardy seized them under pro¬ 
cess against Williamson. 

Withers paid off the demand, getting from Hardy an order on the 
warehouse for the cotton, which was given with reluctance. When 
Withers sent for his cotton he received different bales altogether: 
inferior, unmerchantable trash. On investigation it was ascertained 
that the original cotton had been stolen while in Hardy’s possession 
and other, of very inferior quality, substituted. 

Inquiry showed that the Withers cotton had been manipulated by 
the same parties, and had gone through just the same shifting from 
and to the same warehouses, and had been taken to the same pickery 
that the Planters’ Factory cotton had. Withers demanded his proper 
cotton. After much shuffling by Hardy, Withers went to Judge 
Busteed, who, with great show of virtue, became satisfied of the wrong 
without any examination , and sent for Hardy, telling him the matter 
must be righted, &c., and Withers Avas then turned over to Hardy. 

Hardy desired Withers to sue Hurtel & Hammond, the Avarehouse- 
men, AA r kicli he refused to do, believing that Hardy and Wilson were 
the thieves. Busteed then had the matter brought before him, just 
as Hardy wished it to be, by motion against the warehousemen. 
The Judge selected the laAvyer, and the farce was enacted of institut¬ 
ing and hearing a motion in the court at Mobile in a case pending 
in the middle district at Montgomery. 

Now look at the Star Chamber proceedings on this motion, nar¬ 
rated by Thos. A. Hamilton, and the bullying of the young witness; 
then read Withers’ and Hamilton’s account of this judicial farce, 
ending in no legal result ; see the jockeying and shuffling of Hardy 
up in the Custom-house, near Judge Busteed’s room; and the 
finale of Wilson’s being sent to NeA\ r Orleans to Joseph C. Palmer 
for the money, and of its payment to Withers in Judge Busteed’s 
presence. 

The warehousemen were dragooned into a loss of $1,800, and no 
doubt thought they got out of Judge Busteed’s clutches on good 
terms. 

No mere description of this transaction can do it justice. The 
depositions of Herndon, Withers and T. A. Hamilton have to be 
studied together to realize its enormity. Judge Busteed found he 
Avas caught, and, on the principle of the thief who avoids pursuit 
by crying thief, he sets Withers on the warehousemen. Observe 
what transpired on the investigation; Herndon was in court, 
and Judge Busteed—just returned from his trip to Washington, 
made in the effort to keep Hardy from being turned out of office, 
and during which Afisit he had the conversation with Judge Saffold 
about Wilson’s being as “faithful to him as his wife,”—called Hern¬ 
don up, told him he had seen the affidavits laid before the Govern¬ 
ment, praised John Hardy highly (!!) and tried to set Herndon on 
the warehousemen for these 239 baies of the Planters’ Factory cot¬ 
ton. Not succeeding in this, observe the course taken with this 
case, and note that when the second judicial farce was about to be 


28 


enacted, the tcol, John Hardy, bad been rcircYcd from office; but 
another tool, J. Q. Smith, was still Distiict Attorney in tl:e Middle 
District. Exceptive allegations to the juiitdiction of the oouit in 
Mobile over the 239 bales had been filed, on the ground that the same 
cotton was under seizure in the Middle Distiict. Turn bach to the 
extracts iicm Herndon’s evidence and see how 7 Judge Eusteed dealt 
with and overruled that motion. Then observe the subsequent mo¬ 
tion of J. Q. Smith to transfer the case, called by him by a w rong ti¬ 
tle, and by one that applied to no case on the docket; the ready and 
miraculous apprehension by the Judge of Smith’s reference, and the 
removal of the case; then the refusal of Herndon’s motion to recon¬ 
sider the order of transfer; then, at a subsequent term, and when 
J. Q. Smith had gone out of office, the disiegaul by the Judge of 
his ow T n order of transfer, declaring that no transfer had been made, 
and that it w 7 as Herndon’s business to know 7 it; and finally, the 
keeping of the case in both courts. (See Bugbee’s deposition.) And 
along with this read the proceedings had on Hardy’s application to 
sell the cotton, and its sale; and see Herndon’s evidence, page 117, 
that no report of sale could be found. 

In connection with all this look at the Judge’s proceedings on the 
motion by the claimants to stipulate for the cotton, narrated by 
Herndon; his diatribe against the Government; the refusal of Wor- 
rall to carry out the orders of the Attorney General; the delivery of 
the telegram of the Attorney General not to sell the cotton; the 
affidavits of the telegraph men, found in Herndon’s deposition, of 
the delivery to Wilson of the dispatch directing that the cotton 
must not be sold; the attempt by Worrall (which will be remem¬ 
bered by the committee) to palm off a duplicate dispatch for the 
original, and to prove, by Judge Cutkbert’s endorsement of the time 
of the delivery of the duplicate, that the original dispatch was de¬ 
livered after the sale of the cotton. (See page 282.) 

Worrall swears that he did not receive the first dispatch. The 
affidavits of the telegraph men show that it was delivered to Wilson 
on the 26th of June, 1866. If Worrall tells the truth about not re¬ 
ceiving it, how is the conviction to be resisted that Wilson, “ faith¬ 
ful to the Judge as his wife,” delivered it to him, and he suppressed 
this impediment to the sale % 

Attention is again invited to the importance to the parties of a 
removal of this cotton from view, by a sale, standing as it did, until 
disposed of, as its own witness of the larceny. 

Bead and study, and compare all these facts, and answer if argu¬ 
ment can do justice to this crime, and if Judge Busteed does not 
stand a convicted criminal 1 ? 

Ohserve the fact that this Palmer, to whom Jake Wilson was sent 
for Withers’ money, is the cotton thief spoken of by Withers, and 
the same man who, when he was playing his part in Mobile, was 
sought out by Worrall and accepted by Judge Busteed as surety, 
along with Mr. Andrews, on Worrall’s official bond. (See Andrews 7 
testimony, p. 305.) 


29 


THE NATCHEZ SALVAGE CASE. 

A reference 1ms been made to this case in showing the excessive 
cost of $10,414 03. Justice demands further comment. 

Preliminary to this inquiry, let any lawyer read the drag-net or¬ 
der of seizure, made in vacation, April 21st, 18G6, found in E. IT. 
Smith’s ninth charge, and proven at page 75 of the evidence. It is 
a legal curiosity of rare character, and a fit sequence to the order of 
seizure of 454 bales of cotton in the case of Charles Newberry vs. 06 
bales of cotton, et n/.—called the Natchez cases—found in the tenth 
charge of E. H. Smith, which order is inserted and proven at pages 
74 and 75 of the printed evidence. 

Under the first order the books and papers were seized by the 
same Jake Wilson. But Martin became District Attorney; he and 
the Judge could not co-operate, and their differences resulted in 
Martin’s shooting the Judge. 

The change in District Attorneys, and the dissensions of the Judge 
and Martin, furnish a sufficient solution why these treasury books 
and papers were not employed to get up a repetition of libel suits 
similar to those which were instituted in Montgomery, and which 
were so effectually used and compromised by J. Q. Smith, and of 
which a picture is presented by the evidence of the gentlemen of 
the Montgomery Bar, and of Gen. Swayne. If it be said that this 
supposed purpose is all conjecture, the reply is: What was so re-, 
markable an order issued for 1 There was some purpose. It finds 
no precedent in judicial proceedings. Jake Wilson seized under it 
all the books and papers. 

The Secretary of the Treasury sought for some time in vain to 
get these books and papers returned. The ire of the Judge towards 
him was great on some account. Eead Herndon’s relation of the 
Judge’s comments on the Secretary’s order, on his hearing the mo¬ 
tion in the Planters’ Factory case. Surely it could not have been 
entirely generated by the fact that the Secretary had decided, 
as the law required him to do, the case of the 239 bales, which was 
lawfully before him, on a jurisdiction of which he was sought to be 
deprived by the subsequent seizure of the Court. It is evident 
that the seizure of the 239 bales, under the circumstances, was but 
preliminary to the drag-net vacation order for general seizure of 
cotton, books and papers; and that the refusal of the Judge to pay 
any attention to the decision of the Secretary of the Treasury in the 
239 bales case, was a plain precursor of liow he intended to treat 
similar decisions that might be set, in cases that might originate as 
the fruits of the seizure of the books and papers under the drag¬ 
net order. 

But, as before said, Worrall ceased to be District Attorney, Mar¬ 
tin and the Judge quarreled, and the seizure, viewed alone, would 
seem to be a mere judicial freak, under which no subsequent pro¬ 
ceedings were had. The order of seizure of 454 bales bore, how¬ 
ever, its fruits before Worrall retired, and let us see what those 


30 

fruits were, and how they were cherished from bloom to ripeness, 
and from ripeness to enjoyment. 

To understand this matter fully, it is necessary to read, carefully, 
the testimony of Peter Hamilton, to which the attention of the 
committee is especially invited, as being a clear and intelligent ex¬ 
position of both the law and the facts which go to substantiate the 
charge. 

The steamer Natchez, a lighter, carrying cotton for the public to 
various vessels in the Bay of Mobile, and laden for different ship¬ 
pers, sunk in sight of and while approaching the vessels for which 
her cargo was destined, then lying at anchor in the bay. 

Those vessels sent out their several small boats, and saved, in all, 
about a thousand bales of the cargo, belonging to various shippers. 
The weather was clear, the water not rough, and the circumstances 
attending the salvage were similar, though, of course, slight differ¬ 
ences attended the cases. The salvors filed their several libels de¬ 
signating by description the lots saved by each. 

Peter Hamilton, as proctor, represented the claimants of the cot¬ 
ton. The proper course of procedure could hardly have been mis¬ 
taken. Every lawyer knows that, first, each claimant should have 
been allowed to give stipulations to pay such salvage as might be 
awarded, in order that he might take his damaged property and 
care for and dispose of it with the least possible expense. The 
second step should have been a consolidation of the cases to save 
costs. 

Thirdly—The salvors were sea-faring men, mostly sailors, bound 
to foreign ports, and a speedy adjudication was essential to their 
rights. 

The witnesses were all on the vessels in the Bay. One man from 
each ship could have come up, and in a short time the whole evi¬ 
dence could have been heard, and the salvage adjudicated and di¬ 
vided with little cost. 

The value of the thing saved was of easy ascertainment in the 
second cotton shipping port in the United States, even with out a 
sale. 

If the United States owned any of the cotton saved, its course 
was to put in its claim, identifying and proving property, and pay¬ 
ing salvage as any individual. 

All this is too plain to a lawyer to require discussion. 

Let us now see what was done. The following remarkable order, 
before mentioned, found at page 75 of the printed evidence, explains 
the beginning of what Judge Busteed did: 

District Court of the United States, \ t 

Southern District of Alabama. ] 111 Admiralt y* 

Charles C. Newberry vs. 66 Bales of Cotton; William C. Piggott 
vs. 27 Bales of Cotton, and others against sundry bales of Cotton, 
part of the cargo of the lighter steamer Natchez. 


31 


In these cases, which have been consolidated , a motion is made by 
the claimants for the delivery to them on stipulation of the proper¬ 
ty described in their respective claims, and Mr. E. F. Andrews ap¬ 
pears in behalf of the United States to oppose said motion. Proof 
being made to the Court that the property libeled and now in pos¬ 
session of the United States Marshal is in a perishable condition, 
and that certain of said property, to-wit, 227 bales of cotton, before 
its shipment on the Natchez, bore the proprietary marks of the 
United States, and was in good order and sound at the time of said 
shipment, and that these marks were erased and others substituted; 
and it being suggested to the Court that identification of said cot- 
1 on, by the submergement thereof in the waters of the Bay, has 
been rendered difficult, it is ordered that 454 bales of said cotton, of 
the average condition of the whole, without regard to marks , be re¬ 
tained by the Marshal, and be sold by him under the rules of the 
Court and the direction of Mr. Andrews, and the proceeds thereof 
be paid into the registry of the Court, to abide the final decree in 
1 the cause. 

It is ordered that the remainder of said cotton be delivered to 
said claimants according to their respective claims, upon their en¬ 
tering into stipulation therefor, with satisfactory security, to be 
approved by the Clerk of the Court, at the rate of $150 per bale, 
conditioned as directed by the rules of the Court. 

(Signed,) EICHAED BUSTEED, 

U. 8. District Judge of Alabama. 

Before commenting on this order, let us observe that the allusion 
in it to 227 bales, alleged to have borne the proprietary marks of 
the United States, were bales which the Treasury Agent had seized 
from Williams and Garner, and which Torneny, as Treasury Agent, 
had put on board the steamship Euterpe, for shipment to New York. 
Judge John A. Campbell, late Associate Justice of the Supreme 
Court of the United States, filed a libel in Judge Busteed’s Admi¬ 
ralty Court, for Williams and Garner, against said ship, for a marine 
tort in taking the cotton. The ship made no defence, and Torneny 
made none. Judge Busteed heard the case, and decreed the cotton 
to Williams and Garner, to whom the ship Euterpe then delivered 
it; and they had shipped it per the Natchez, as a lighter, along with 
the other cotton, the several shippers not having the slightest con¬ 
nection with each other’s shipment. These are the 227 bales speci¬ 
fied in the order of Judge Busteed. 

He pretended that his decree in favor of Williams and Garner was 
a fraud upon him; but seeing that he was thus assailing Judge 
Campbell, who, he says, is friendly to him, he tries to turn the charge 
of fraud off on Mr. Taylor, Judge Campbell’s assistant counsel, who 
is of the firm of Dargan & Taylor, and who is named by Judge 
Cuthbert as one of the leading lawyers of Mobile, on the pretence 


32 


that Judge Campbell was not in court at the time the decree was ta¬ 
ken.* 

Under this miserable pretext of fraud on him, (P. Hamilton’s tes¬ 
timony, pages 88 and 102,) and without inquiring whether a bale of 
the cotton saved was of that shipped by Williams and Garner, he 
concludes to make good the marine loss supposed to have been sus¬ 
tained by the United States, not by seizing the cotton of the United 
States saved, without respect to the rights of salvors, which would 
have been bad enough, but by seizing bales of the average of the 
whole , without regard to marks ! ” 

Thus he starts on his foray by taking from others just double the 
cotton which, by his own pretences, the United States had on board 
the Natchez. It will be observed that Mr. it. F. Andrews is the 
proctor for the United States. It will be seen in the sequel how he 
is employed, for half by Williams and Garner, to beat the United 
States in this same case$ and what Hudibrastio power he displayed 
to 

“ Confute, change hands and still confute,” 

Observe that the order for the seizure of the 454 bales sets out by 
saying u in these cases, which have been consolidated .” That they 
should have been consolidated, every lawyer at all familiar with the 
admiralty practice will at once see. But read the following extract 
from Peter Ha'miiton’s evidence (pages 87 and 88). 


Q,. Was there a motion made to consolidate?—A. Yes, sir. 

Q. Was it admitted or refused?—A. The consolidation was made, as 
I understood it, at one time. I moved to consolidate,, and I under¬ 
stood that the order was granted. Subsequently, inasmuch as there 
was no entry of that order made upon the minute book, to the end 
that it might appear of record, I inserted in the order directing the 
seizure of the 4o4 bales, the clause “ which had been consolidated.” 
Afterwards these proceedings were conducted by the court, however, as 
if no consolidation had taken xolace. 

By Mr. Eldridge : 

Q. By whose order or direction ?—A. I do not know. The Judge af¬ 
terwards denied that a consolidation of the cases had been granted 
and refused, in several instances, to consider them as consolidated. * 

Q. Was that after the order was made ?—A* Yes, sir. 

Q. Except to send up one witness from each vessel to state the little 


* The following letter from Mr. Taylor is referred to, showing the falsehood of 
Judge Busteed’s pretence that the decreee mentioned above was obtained by fraud as 
well as that of his pretence that Judge Campbell was not in court when it was taken. 
Mr. R. H. Smith : 


.. j? IR T I understand that Judge Busteed alleged before the Congressional Committee 
that the decree in the case ot Garner & Williams vs. snip Euterpe, was a fraud unon him 
This is entirely untrue, and the assertion without the first pretence of justification' 
Judge CampbeH and inyseil were the oniy counsel. We were both sitting at the bar 
when the case was called in regular order, There was no appearance £>r defendants 


Judge 


and I asked for a decree pro conjesso. The judge requested me to raakcTit out 
Campbell then wrote it, and the judge read it and signed it on the bench. 

Respectfully, 

Mobile, Nov. 30th, 1869. JN0, T * TA *LOR. 



33 


incidents affecting his boat’s crew, as different from the others, in what 
did the testimony in behalf of these salvors vary from one plain, sim¬ 
ple case?—A. The circumstances connected with the great bulk of the 
salvage claims were the same. There were cases, however, differing 
in degree; for instance, there was a steamboat, which was bound for 
New Orleans, which stopped and made great exertions to save the 
cotton. 

Q. The weather was fair and the sea smooth?—A. Yes, sir; there was 
little risk of property in saving the cotton. 

Q. How much costs were your clients put to in these cases?—A. Up¬ 
wards of $10,000. 

Q. Who were your clients ?—The claimants I appeared for were the 
agents of some six ships. 

Q. The Great Western Insurance Company of New York was the prin¬ 
cipal of your clients?—A. They were heavy underwriters. 

Q. The aggregate amount of costs was ten thousand four hundred dol¬ 
lars and odd; is the statement I now show you a detailed statement of the 
costs?—A. Yes, sir. 

Q,. Who prepared that statement?—A. I prepared it. 

Q. Did you prepare it with great care, dr otherwise ?—A. I prepared it 
with great care, and, I believe, with entire accuracy. 

[The statement referred to is presented as exhibit A, attached to It. H. 
Smith’s charges.] 

By Mr. Eldridge : 

Q. I understand you to say that when you first replied to the judge in 
reference to this cotton you could get no reason for his refusal to do what 
was desired ; did you finally get from him the reasons?—A. The reason 
assigned by the judge was that he had reason to believe that 227 bales of 
this cotton had borne the proprietary marks of the United States, and 
had been surreptitiously taken from the possession of its officers and sub¬ 
jected to this risk without authority of the government, and therefore 
that the government must be protected against loss. 

By Mr. Woodbridge : v 

Q,. You say that in your first interview with the judge you could not 
understand his reasons; how many interviews did you have with him, 
and how much time elapsed after the first interview before he stated to 
you that the government claimed 227 bales of this cotton ?—A. I cannot 
fix the time accurately. I recollect that in one interview the judge said 
he would like very much to see the bills of lading of these several ships 
for this cotton ; and copies of the bills of lading were furnished to him. 
That was before I obtained this order. I called upon the judge the next 
day, and probably two or three times before I got the order. Several days 
elapsed from the first application until the order was made; I cannot 
state the number of days. 

Q. Was it alleged that the owners of the other cotton had done any¬ 
thing improper?—A. That was precisely the point we made—why should 
these gentlemen be implicated in an improper transaction, if there was 
such a transaction, with which they had nothing whatever to do ? 

Q. Then it was not claimed that the owners of the other cotton had 
done anything improper, in relation to the cotton ?—A. There was no 
proof that they had. The amount of the allegation was that, upon the 
statement of facts made by the judge, the government of the United States 
should be protected. 

Q,. Who appeared for the government of the United States ?—A. Mr. 
Andrews. 

Q. Did he claim that the owners of the other cotton had anything to do 
with the removal of the 227 bales?—A. I do not know that he did ; there 
was no claim filed, and no such claim at that time set up, as I now 

G 


34 


recollect. I do not think it was put upon that ground or upon any other, 
except that the government of the United States had suffered so much, 
and therefore the government should be protected to the full extent. 
There w T as no pretence, so far as lean recollect, that these gentlemen were 
cognizant of the shipment of that cotton, or that jthey had done anything 
in regard to it. 

By Mr. Eldridge : 

Q. When the judge finally gave you these reasons to which you last re¬ 
ferred, had a claim upon the part of the United States then been filed ?— 
A. No. I remember perfectly well that it was before any writing had 
been presented on behalf of the United States, because I remarked to the 
judge, “The United States are making no claim here.” 

Q. Why did you go to the judge to negotiate about the matter ?—A. Be¬ 
cause I did not know where else to go. The clerk had refused to give 
an order upon the marshal to turn over this cotton and receive the stip¬ 
ulation. 

As to the conduct of Judge Busteed in not allowing stipulations 
in admiralty, and especially the reasons for his refusual, to-wit: the 
desire to increase cost upon the unfortunate shippers, which the 
rules of admiralty are intended to lessen, read the following from 
Judge Cutlibert’s testimony, pages 71 and 72 : 

Q,. Early in the business of the court arose a number of salvage cases ? 
—A. Yes, sir. 

Q. Do you know of propositions being made by the claimants of the 
property to give bonds, stipulations in admiralty, for the payment of such 
decrees as might be rendered? And do you know of Judge Busteed’s 
having said anything in relation to his determination respecting those 
things—respecting the allowing such bonds to be given—and why he re¬ 
fused to do so, if he did refuse ?—A. I know by hearsay ; I think there 
was a good deal of discussion in the court—something in relation to bonds 
being offered. I know that Judge Busteed expressed a determination 
that wherever property was seized by the operation of his court he would 
have it sold, so that the officers of the court might receive their fees. 

Q,. Did he say anything about what had been the custom or practice of 
the court, and his determination to overturn it ?—A. Yes ; he said that 
the attorneys of the court had established a custom of bonding property 
where there was litigation, and that he would not permit it. I do not 
recollect the exact words, but something equivalent to that. 

Q. To what class of suits did that relate ?—A. I think there were salv¬ 
age cases under consideration at the time such language was used. There 
were salvage cases, and*there were confiscation cases—cases where cotton 
was seized as having belonged to the Confederate Government, and pro¬ 
ceedings were instituted to confiscate it; but I do not recollect with cer¬ 
tainty whether the one or the other class of cases were under considera¬ 
tion at this time. 

Q,. His language applied generally, did it?—A. Yes, sir. 

The question presses itself on the mind—what did this conduct 
mean ? And when the reply is given by referring to the $10,414.63 
of cost as the result, the question is but half answered. The 454 
bales were sold, and bought by some one, we don't knoio who! The 
broker who bought it is known, but not the real purchaser. 

The 454 bales were sold, the claimants not being allowed to stipu¬ 
late for them. Mr. Hamilton moved to set aside the sale, and the 


35 


Judge entered upon a scene of browbeating witnesses and insulting 
the attorney, which certainly displayed his genius, however little it 
may redound to his credit. Should I attempt to picture the scene, 
I tear the reader would be incredulous of the truth of the narrative. 
The whole evidence of Peter Hamilton must be studied to under¬ 
stand it $ and even then we shall fail to apprehend Judge Busteed 
truly, unless we know the elevated character, clear head, and for¬ 
bearing temper of Mr. Hamilton. The members of the committee 
who heard him testify will, in some degree, appreciate these re¬ 
marks. 

Attention is invited to the following extracts from Mr. Hamilton’s 
testimony, pages 86 and 100: 

Q. What was the treatment these witnesses received from Judge Bus- 
teed in their examination ? 

(The question objected to by Judge Busteed, and allowed by the com¬ 
mittee.) 

A. In my judgment the treatment these witnesses received was objec¬ 
tionable to the last degree. The manner of the judge to the witnesses was 
insulting and disbelieving, as if he suspected everything they said to be 
untrue, and his treatment of them was, I think, in accordance with that 
suspicion. I cannot describe it more accurately than to say that, in my 
judgment, it was exceedingly unbecoming. In some instances he almost 
put replies into the mouths of the witnesses which they had not uttered. 
I began the examination of the witnesses myself, and put the questions to 
them. My examination was constantly interrupted by the court. I was 
not permitted to put very many of the questions which I desired to put. 
I was continually required to change the terms of my questions, and they 
were allowed to be put from me only through the judge himself. Objec¬ 
tions were continually suggested by the court, and acted upon sometimes 
without permitting me to make any remarks at all upon them. 

Q,. What did the testimony tend to prove?—A. The tendency of the 
testimony was to prove the facts upon which I had made the motion to set 
aside the sale. In the first place, that the 454 bales of cotton were sold in 
one lump ; and, in the next place, that the cotton was sold in such a man¬ 
ner that there could be no opportunity at all to make any examination of 
it as to its condition. In the next place that the sale was conducted in so 
rapid a manner that those who had gone there with a determination to 
bid considerably above the amount at which the cotton was knocked 
down, were not permitted to make a bid. And another fact, that, as I 
conceived, a very incompetent person was appointed to conduct the sale. 

Q. Who was that person ?—A. Jacob Wilson. 

By Mr. Woodbridge : 

Q. Are you prepared to say that you think there is a false statement of 
the testimony ?—A. That was my judgment at the time ; I am very reluc¬ 
tant to state these things now. 

Q. Are you able after this lapse of time to state any particular or im¬ 
proper false statement in the testimony ?—A. I will mention this ; the 
current of the testimony undoubtedly showed that the sale was conducted 
in an exceedingly hasty manner. I think that, with the exception of 
Mr. Lovett's testimony, the witnesses all agreed in the statement that 
from three to five minutes was the extent of the time occupied in the 
bidding ; Mr. Lovett said about some 15 minutes. Without trying to say 
precisely what each witness said, the current of the testimony of all the 
witnesses established the fact, in my judgment, at least, that an opportu- 


36 

nity for an additional bid—after the bid of $105 per bale was made—was 
not given. 

Q. Supposing the statement of the testimony, as is detailed in this opin¬ 
ion, by the judge, had been made by an opposing counsel, would you have 
deemed it an uhfair or a false statement of the testimony ?—A. If I had 
to reply to it I would have shown that it was utterly incorrect. 

The result was Hamilton was insulted out of the court; the wit¬ 
nesses were browbeaten; the motion resented as an attack on the 
Judge’s paragons of virtue—John Hardy and Jake Wilson—and 
the reputable gentlemen, who presumed to give evidence impeach¬ 
ing the sale, were punished with a libelous assault upon their char¬ 
acters by the opinion of the Judge, found at pages 89, 90 and 91 of 
the record, and which was published, at the time, in the newspapers 
of the town, and in reference to which Mr. Hamilton testifies, as 
above, that the statement of the witnesses’ evidence made by the 
Judge was u utterly incorrect.” 

The conclusion to be drawn from all this is, that the Judge was 
interested in the purchase of the cotton, as well as in the fee bill of 
$10,414 68. 

Having thus effectually disposed of the proctor and witnesses 
who got in his way, the Judge r not content with this revenge, turns 
on Hamilton, who had also dared to move to retax the cost, and calls 
him to an account for the commercial charges incurred on the re¬ 
mainder of the 1,000 bales of cotton which had, by consent of proc¬ 
tors, been stipulated for, and which went into the hands of commer¬ 
cial agents. 

Attention is invited to the pertinent inquiry by Mr. Eldridge, (on 
page 101,) u What jurisdiction had the Judge over this matter F and 
to the truth of Hamilton’s reply— u I do not think he had any.” 

Should we undertake to institute a comparison of the charges on 
the 454 bales by Judge Busteed, with the commercial charges on 
the remainder, it would be necessary, in order to form a correct 
judgment, that we should know whether the cotton seized by the 
Judge did not embrace the best in the lot, and that which required 
least expenses for repairs, and then we would ask the question: 
“ What excuse does it furnish the Judge for extortion, that others 
commit extortions F’ And then, how is it that the supposed 
lesser extortions by commercial agents arrested by the Judge’s 
attention—a matter not within his jurisdiction—while the greater 
extortions of John Hardy and Jacob Wilson could not be seen by 
him when brought specially to his judicial cognizance by the proc¬ 
tor ; and still more, why should the mere bringing of these matters 
to his consideration have so kindled his indignation to red heat ? 

But let us look at the finale of this matter: 

1. Some unrevealed person got the cotton at a price far below its 
value. 

2. The officers of the Court got $10,414 63 as expenses on 414 
bales. 


37 


3. The United States failed to make out its claim , and got nothing; 
but Judge Campbell could not, after more than a year’s labor, get 
the remnant of money coming to Williams and Garner out ot the 
Court; nor could Peter Hamilton, proctor for shippers. 

Williams and Garner at last hit upon the happy expedient of 
offering one-half of it to Andrews, the friend and companion of the 
Judge, and the Attorney of Record for the United States ivho filed 
the cla im on behalf of the Government for the bales. 

The clients neither informed Andrews of the facts on which their 
rights rested, nor of any witnesses, nor gave any further attention 
to the case; but behold ! in a short time they get their money, (see 
the evidence of John H. Garner and of Price Williams, passim , in 
the printed record,) and Garner says since the Committee left Mobile 
Andrews has sent for his half! 

The charge is that Price Williams bribed the Judge. It should 
have been, that the Judge, through Andrews, forced Williams and 
Garner to submit to black mail in order that they might even get 
half justice. 

The charge is too harsh on Williams, and it gives the writer plea¬ 
sure to modify it. 

I shall pass, without comment, the charge of bribery in the wharf 
case. An appeal from the Judged decision is now pending in the 
Supreme Court of the United States, and to that forum the correct¬ 
ness of the decree is referred. If it be affirmed, Judge Busteed 
will, at least, be partially able to set up the plea of Lord Bacon’s 
biographer, that, though he received money for his judgments, 
they were not reversed. If the decree shall be reversed, the wrong 
done w ill be righted; and, happily for justice, and for the honor and 
dignity of the United States, the facts of the case are not needed 
for the exposure of Judge Busteed’s wickedness. 

The twelfth charge, as to all its statements of facts, is sufficiently 
made out by the evidence of Peter Hamilton. The outrage, by 
delay, on the sailors, who were entitled to their pittances of salvage, 
is glaring; the absence of all reasonable cause for these delays is 
apparent; standing alone, the case presents an instance of an Ad¬ 
miralty Judge oblivious to all sense of the duty of making a speedy 
decision. Taken in connection with the general course of the 
Judge’s conduct, we may at least exclaim : 

* “ Quidquid id est, timeo Ranaos, et dona ferentes ! ” 

The heat of this prosecution may have aided the salvors in get¬ 
ting, at the eleventh hour, a decree free from flagrant injustice, 
just as the exhibition of the charges came in good time to prevent 
the Judge from accepting J. O. D. Smith’s order for $500, given on 
Senator Spencer’s promised solicitation, but which Mr. Smith con¬ 
sidered as clear, pure black mail forced out of him by Judge Bus¬ 
teed. 

Before proceeding to the discussion of the thirteenth charge, 
based on the trial and conviction of Gustavus Horton, let us advert 


38 


to the character of Judge Busteed’s associates, and see if they can 
relieve him. If they cannot, his last prop is gone. 

Who are Bufus Andrews, Lawrence Worrall, J. Q. Smith, K W. 
Trimble, John Hardy, and Jacob Wilson? The reader can already 
answer the question as to who each is except Trimble, and it is, 
perhaps, enough to say he is the law pupil of J. Q. Smith, and the 
clerk of Judge Busteed. 

Bufus Andrews has already been placed before the committee in 
connection with the transactions in the Planters’ Factory case, and 
his advent to Mobile. At page 73 of the record “Judge Busteed 
admitted the relations between Bufus Andrews, Lawrence Worrall 
and himself were as intimate as the relations of any three men 
could be; that they were most intimate and friendly in their char¬ 
acter.” 

See, just before this extract, the evidence of Judge Cuthbert, con¬ 
firmatory of what has been said in another part of this j>aper as to ' 
Andrews’ place of business, &c. 

At pages 73 and 74 Judge Cuthbert proves that Andrews ob¬ 
tained a large practice in important cases in the court; that he and 
Worrall were always associated; that he was never engaged in any 
elaborate argment. The witness says, “there were some passing ar¬ 
guments that he would engage in, but I do not recollect anything 
that indicated an elaborate preparation.” Again, “I cannot recol¬ 
lect a single case that was decided adversely to him. I believe the 
cases in which he appeared were all decided in his favor. I do not 
recollect that the thing underwent any careful consideration by me ; 

I know that, as a general thing, he was very successful with the 
Court.” 

Here we have an unknown man, evidently of small legal capaci¬ 
ty, who comes with the Judge, lives with him, frequents the court, 
and is located transiently in the third story of the Custom-house, 
but without office, and without books; he goes, as he came, with 
the Judge—yet this man immediately gets a large business, and is 
always successful ? Does the case require comment ? (See p. 73.) 

In the wharf case he does not even put his name to the bill as 
one of the solicitors; he takes no part in the trial, yet is paid $10,000. 
(See Alphonse Hurtel’s evidence.) In this case the complainants 
had Judge Campbell, the two Hamiltons, Dargan & Taylor, and 
George N. Stewart—all of whom are known to be distinguished and 
able lawyers—and Andrews is retained to assist these gentlemen, 
and gets $10,000, and his is the first fee j)aid ! 

Lawrence Worrall was the former law partner of the Judge, in 
New York. It is not contended that he is a man capable of man¬ 
aging a cause. At first he is clerk, commissioner of bail and affi¬ 
davits, and district attorney, and general practitioner with 
Andrews, with whom he is always associated; then register in 
bankruptcy. He is presented in several parts of the foregoing dis¬ 
cussion. He is found consorting with Spencer to have presents 
made to the Judge, who, he says, is rich. (See his evidence as to the 


39 


Judge’s wealth.) See how he exacts from creditors in bankruptcy 
five dollars for a proof of debt, the legal fee for which is 25 cents 
by 30th general orders in bankruptcy established by the Supreme 
Court; (see Alphonse Hurtel and T. A. Hamilton’s evidence,) and 
see Worrall’s own miserable subterfuge for the act given in his own 
evidence, and see his attempt in the Davis, Hall & Co., case in 
bankruptcy to cozen the creditors out of their right to elect an as¬ 
signee, narrated by Alphonse Hurtel; observe, too, that lie tells 
Judge Cuthbert that he and Andrews have to apply their money as 
a common fund for the support of the Judge’s family. (Cuthbert’s 
deposition.) This, of course, he denies. No .other alternative was 
left him. 

Enough has been said of Jake Wilson. For portraits of John 
Hardy, and J. Q. Smith, see the evidence of almost every witness 
residing in Montgomery. Gen. SwayUe thus truly describes them : 

By Mr. Eldridgke : 

Q. What charges did you make to Judge Busteed, or what charges did 
you speak to him about, in reference to James. Q. Smith ?—A. Principally 
his interference with bureau matters; but his general conduct was the 
subject of these conversations. 

Q. What general conduct ?—give us something specific.—A. Well, I 
think his compromising of cotton cases was made mention of between us. 
Whether I ever stated much to the judge about the collection of costs I 
do not know. That was a matter understood, but it was done by order of 
the court. 

Q. What was said by you to the judge about the compromising of these 
cotton cases ?—A. That I cannot tell. 

Q. What about the costs ?—A. I could not say specifically what it was. 

Q. You say the judge knew your opinion of James Q. Smith?—A. Yes, 
sir. 

Q. What opinion of yours did he know with reference to him?—A. He 
knew that I considered Smith a scoundrel. 

Q. In what regard ?—A. Both as dishonest and ferocious. I recollect 
on this ride I took with the judge, mention was made of a letter of Mr. 
James Q. Smith, addressed, I think, to the assessor of internal revenue, 
in which language was used exceedingly vulgar and profane, and I spoke 
to the judge of the character of a man who could possibly write such a 
letter. 

Q. Why did you talk to the judge about this matter?—A. Mr. Smith 
was district attorney, and the judge was judge of the district court. 

Q. What was there batween them that led you to warn him against 
Smith?—A. Simply this: that I considered it necessary to the people of 
Alabama that the district attorney and the marshal should be got rid of; 
I thought them a curse to the people of the State. I didn’tthink that the 
judge was a party to their conduct, and I thought if the judge could be 
roused to appreciate it that he would desire their removal instead of their 
retention ; and by their removal and retention I did not mean simply 
their removal or retention in office, but that he would want them away 
from his court a3 principal actors in it. 

Q. Did you know of any intimacy between the judge and the dis¬ 
trict attorney other than that which would necessarliy result from their 
official relations ?—A. How far an intimacy from their official relations 
would go, I cannot say. But the judge lived in Montgomery, part of 
the time, in Mr. Smith’s rooms, and there was, to all appearance, kindly 




40 

#. 

personal relations between them; but I should not have set that fact 
down as improper. 

Q. That would not necessarily result from official relations ?—A. It 
might or it might not, according to the personal like or dislike of the 
parties. It was not inconsistent with honesty. The judge spoke to me 
repeatedly, and with a great deal of impatience, of Mr. Smith’s igno¬ 
rance, and used to complain to me that he was forced to be district at¬ 
torney and prosecutor too, because of Smith’s ignorance. 

By Mr. Churchill : 

Q,. Was official corruption one of the charges you made against Smith 
in your conversation with the judge?—A. Yes, sir, certainly. 

Q. What did the judge say in regard to that?—A. I do not know 
that he ever said anything, so much as that he never admitted it. 

Q. Did he defend Smith in that conversation you had with him?— 
A. I do not think he did. 

Q,. So far as you know, was there anything in their intercourse at all 
except what is usual between persons holding the official relations 
which they held with each other?—A. Only this, that the conduct, or 
rather the course, of Mr. Smith in court, the facilities which he enjoyed, 
and the conduct of the judge towards him in court, I understood to be 
such as could be accounted for on no other principle than that there 
was a corrupt alliance between them; it was that which finally deter¬ 
mined me to speak to him as I did. 

Q. How long was it after the subject of Smith’s official corruption was 
talked about between yourself and the judge that Mr. Smith was removed 
from the office of district attorney?—A. I should think three or four 
months ; I could not say precisely. 

Q. Did the judge oppose that removal?—A. My understanding was 
that he did, strenuously, after this conversation. 

By Mr. Eldridge : 

Q. You emphasized the expression that you did not think the judge 
was a party to any of their corruptions ?—A. I ought to have said that 
I did not know it. I made up my mind finally, or rather came to the 
conclusion, that the judge must be mixed up in it; at any rate, the in¬ 
ference was so strong in my mind that I felt I did not want anything 
more to do with him; but his approaches to me afterwards for personal 
and friendly relations were of such a nature that I said to myself and 
said to my friends: “Now, I don’t know that this man is corrupt, 
and if he will from this time carry himself straight, I think we can 
save him, and if we can we had better do it.” 

Q. Before or after the removal of Smith?—A. Months after the re¬ 
moval of Smith; that w^as said within a few weeks prior to the time I 
wrote to him as I did. 

Q. Have you changed those opinions now—the opinions which you 
had that he was not mixed up with it ?—A. I have; I am now of the 
opinion that I was when I wrote him that letter. 

By Mr. Churchill : 

Q. Do you remember any other person whose conduct was particu¬ 
larly mentioned between you and the judge except James Q. Smith?— 
A. Oh, yes—Hardy; the Judge complained to me of my having had 
Hardy removed, which I had. 

Q. Give the conversation that occurred between you and the judge 
on this occasion in relation to this subject.—A. He simply complained; 
I told him how necessary I had thought it to be, and something was 
said in that connection. He had a good deal to say of the amount of 
work that I would do in such a case if I went at it. He simply 


41 


spoke of me; he said he had never met or known a man who if he 
undertook a thing of that kind would do so much patient labor in 
putting it through. I said to him, rather significantly, that that was 
only a preliminary skirmish. 

By Mr. Eldridge : 

Q • What reasons did he allege, or why did he complain ? —A. He 
said, *‘You have^had my marshal removed,” as if he had not wanted 
it done. 

By Mr. Churchill : 

Q. What reasons did you give why he ought to be removed ?—A: 
His rapacity. I probably spoke of him as the most rapacious person 
I had ever known in his official capacity. 

Q. What did he say in answer to that charge of yours against Har¬ 
dy !—A. I do not know. I cannot say anything definite was said. All 
these things were merely remarks interspersed in conversation. 

Bead the accounts scattered all through the proofs of the rapa¬ 
city and plundering of Smith and Hardy, and say if such can be 
tolerated in a civilized land. 

Smith was the Judge’s intimate companion, with whom he stayed 
in Montgomery, and in whose room he slept. 

When efforts were made, and successfully, to turn Hardy out of 
office, see how the Judge posts off in hot haste to Washington to 
save him, and how he lamented to ‘Gen. Swayne his removal, and 
tells Judge Saffold how dear Jake Wilson was to him. And after 
his return, and the case is up in which Hardy had stolen the With¬ 
ers’ cotton, observe how he turns the investigation from Hard 3 r and 
assures Herndon of John Hardy’s honesty. 

H. W. Trimble, the successor of Worrall in the clerkship, came 
from J. Q. Smith’s office, where lie had been instructed , ( a at the feet 
of Gamaliel! ”) and goes into office by taking an oath, (a sort of oath 
of office specially gotten up for him by Judge Busteed,) and which, 
even as worded, was false. See Trimble’s admission and account of 
this fact at pages 388 and 389 of the printed record. Its perusal is 
invited. 

These are Judge Busteed’s companions and friends. These are 
the men who controlled in his Court the administration of justice ! 

These are the witnesses he relies on to refute, by negative evi¬ 
dence mainly, the positive evidence against him of honorable men 
and of the records. 

I shall not pause to further analyze or sift their testimony. Let 
any man read John Hardy’s, and answer if falsehood and evasion do 
not appear in every line. I call attention to the manner , too, with 
which he testified. The gentlemen who heard him can tell that. 

Bead Andrews’testimony about the Williams and Garner matter, 
and note how entirely incapable he is of even describing the case. 
Yet Williams and Garner got the money by his 'professional aid . 
Mark how Andrews even gives out the idea that he had no fee in the 
Williams and Garner matter; nevertheless, since the talcing of evi¬ 
dence has closed , he has sent for it! So says John H. Garner. The 
fact can be easily ascertained. 

H 


42 


But it may be asked, what does this denunciation of so many 
men mean? The answer is, that instead of u whiskey rings,” we in 
Alabama have a Court-house Bing, by which justice is overthrown 
and the Government brought into odium. The difficulty of resist¬ 
ing and overthrowing so extensive and formidable a combination 
was anticipated and is fully appreciated. 

The force of the hue and cry of u rebel persecution” has all been 
taken into account. Are Gen. Swayne, Gustavus Horton and Gov¬ 
ernor Smith rebels ? Judge Busteed, while he was covertly playing 
Democrat, (as is described by Horton and Gen. Swayne,) was shot 
by the District Attorney, a ^Republican of the straitest sect. But 
Martin was a native of the South, and Judge Busteed talks loudly 
about the ‘‘rebel bullet” he bears in his body. He knoAvs full well 
that he was shot in a difficulty that had not the slightest relation 
to politics 5 that the bullet he bears is the fruit of his own hectoring 
and insulting course towards the District Attorney, because he dared 
to supersede Lawrence Worrall. 

What impediment Judge Busteed offered to the progress of seces¬ 
sion the history of New York politics will tell. The writer of this 
review endeavored through all his manhood to avert that awful 
calamity. It came in spite of his more than twenty years opposi¬ 
tion, and he has no excuse tp offer for standing by his native and 
adopted States in the hours of their trouble. He begs x>ardon for 
this digression from the evidence. Truth seems to require it. 

The foregoing review leaves no necessity for summing up or re¬ 
capitulating the charges. It is submitted that the first, second, 
third, fourth, seventh, eighth, ninth, tenth, eleventh and seven¬ 
teenth charges of Kobert H. Smith, and the charges of Henry G. 
Semple, respecting the Spencer and Burke* and Day bribes, and the 
Morris money of $5,000, have been shown to be proven. 

Turning from the peculations of Judge Busteed and the officers 
of his Court, let us investigate the case of 

THE CRIMINAL PROSECUTION AND CONVICTION OF GUSTAVUS 

HORTON. 

Gustavus Horton is an old and respectable citizen, who had been 
a merchant of Mobile of thirty years’ standing; was openly through 
the war an Union man $ and was imprisoned by the Confederates 
for his Union course. He belonged to the Kepublican party, ad¬ 
vocated the reconstruction measures, and was subjected to great 
odium in the community for his sentiments; was a member of the 
State Constitutional Convention, and presided at the meeting at 
Mobile at which Judge Kelly, of Pennsylvania, spoke, and where 
the riot, familiarly known as the Kelly riot, occurred. 

An opposition meeting was held, after the Kelly meeting, and at 
this Judge Busteed presided and made a speech. His political 
course in this, and other respects, incurred the displeasure of the 
Kepublican party in Alabama, and particularly of the colored peo¬ 
ple. Mr. Horton, among others of the Kepublican party, censured 
Judge Busteed’s political action. 


John Hardy, the late Marshal, had started a Republican paper in 
Montgomery, with the name of Gen. Grant for President, and that of 
Judge Richard Busteed for Vice-President, at its head. About May, 
before Horton was indicted, he had written a letter to John Hardy, 
which was published in the latter’s paper, stating that Hardy had 
made a mistake in putting up the Judge’s name, for he had lost the 
confidence of the Republican party in Mobile. 

A public demand was made in the paper on Horton to retract, of 
which he took no notice, and the demand was reiterated several 
times. 

(See Horton’s and Gen. Swayne’s testimony at large.) 

Mr. Horton was Mayor of Mobile, by military appointment. The 
charge of Judge Busteed to the jury, found from page 76 to 81, is 
referred to as proof that Judge i lusteed knew and availed himself 
of the odium that Horton had incurred from the community, by the 
fact that he had, through military appointment, superseded the 
Mayor who had been elected by the people. 

The last charge, of a political character, to which Mr. Horton 
could have been amenable, was that of discriminating against a 
colored person on account of his race or color, or previous condi¬ 
tion 5 and yet this is what he was indicted for. 

At a Republican Convention, in June, 1867, one of Judge Bus- 
teed’s friends made application that he should be introduced to the 
floor of the Convention. Some of the delegates from Mobile ob¬ 
jected, on the ground that he was not a Republican, stating that Mr. 
Horton had written a letter to Hardy (the letter before mentioned) 
impugning Busteed’s republicanism, and that Hardy had published 
it, and had called on Horton to explain, and that the latter refused 
to make any explanation in relation to it. Judge Busteed was ex¬ 
cluded from the Convention. 

General Swayne, of the United States Army, late military com¬ 
mander of Alabama, thus speaks of Mr. Horton: “ I might also say 
that my indignation was strongly moved by the Judge’s imprison¬ 
ment of the Mayor of Mobile, Mr. Horton, who was a warm per¬ 
sonal friend of mine, and whom I believed, and still believe, to be 
an entirely loyal and honest man.” (See evidence, p. 157.) 

At the following fall term of the Court Horton was indicted and 
convicted. (See Semple’s evidence, p. 350.) 

. Observe now, from the testimony of Healy, the Marshal, (p. 363,) 
that juries were not drawn in Judge Busteed’s Court, though re¬ 
quired by act of Congress of July 20,1840. (5 statute at large, 394.) 
The law of the State to which this statute refers, and which it re¬ 
quires to be followed, is found in sections 4,062 and 4,063 of the 
revised Code of Alabama of 1867, and provides for drawing the 
jury biennially, from a list of householders and freeholders; and 
the English declaration of rights declares u That juries ought to be 
duly empaneled and returned.” (3 Hallam’s Const. History of Eng¬ 
land, p. 103, seventh edition, by Little, Brown & Co.) 

But mark Healy’s evidence! that he had been in the habit of se- 


44 


lectin g the jurors, (page 363,) hut at this term the list of jurors teas 
made out and handed him by the cleric. (Page 362.) 

We start then with the fact that the jury Avas packed by Judge 
Busteed’s clerk, and that the mode of designating the jurors for the 
term was exceptional. By this it is not intended to eon\ T ey the idea 
that the men composing the jury were corrupt, but it is apparent, 
from the e\ T idence, that Mr. Horton was, at best, odious in the com¬ 
munity for his political sentiments and action, and it is e\ T ident how 
powerful an engine Judge Busteed had in his hands and was using, 
when his cleric was fixing up a jury specially for that term. 

Besides, Judge Cuthbert’s evidence (p. 84) shows Iioav absolutely 
the Judge controlled the juries in his court, both as to the law and 
the facts, and by reference to the Judge’s charge in Horton’s case, 
we see how little the jury was allowed to do. (p. 76 to 81.) 

A miserable, drunken, disorderly negro, offensive to decency, and 
of turbulent character, was constantly on the chief streets of the 
city, in fantastic garb, with a newspaper on his back and a fool’s 
cap on his head, labelled u Bromberg’s hat,” in derision of the re¬ 
ceded fact that Mr. Bromberg had lost his hat when on the stand 
with Judge Kelly. This man was daily attracting and exciting the 
populace by crying out, u Bromberg’s hat,” and much more of like 
stuff, in a loud, discordant voice. Horton, after fining him without 
effect, ordered him sent out of the city as a dangerous and suspicious 
character—the ordinances of the city not only authorizing this 
course, but it having long been practiced by the Mayors of the city. 
Many white men had been sent out by Horton’s predecessor, and by 
Horton. The police took the negro on a steamboat to Kew Orleans, 
but he returned on the return trip of the boat, and Avas again on the 
street on Sunday morning, folloAved by a crowd, repeating his con¬ 
duct. Horton sent the man to Montgomery to General Swayne, who 
was then military commander of Alabama, with his headquarters at 
that city. Fpr this Horton was indicted under the civil rights bill, 
and was charged with discriminating against the negro on account of 
% his race , color or previous condition. See the charge of Judge Bus¬ 
teed to the Grand Jury, inviting the indictment. (Evidence, p. 267.) 
His defence was that he did not so discriminate, and the line of it 
was to make good this fact. Judge Busteed refused to allow evi¬ 
dence tending to prove it. The trial lasted five days, creating much 
interest, and attracting a great crowd. Horton was convicted and ■ 
fined. It would be almost impossible to give a picture of this trial 
without copying the evidence. 

The whole scheme was an attempt not only to gain revenge, but 
to strike and degrade Horton, politically and personally, for having 
. opposed the Judge’s political aspirations. 

There was no evidence whatever of Horton’s guilt. There was no 
proof tending to show that he had been in the slightest degree in¬ 
fluenced by the race, color, or preAdous condition of the man pun¬ 
ished. 

Horton was not allowed to offer any testimony to the very point 


45 


of defence. His counsel, Mr. Moulton, was bullied down (notwith¬ 
standing what lie himself thought). No softer word can express 
the idea. He was so bullied that, for at least two days, he sat dumb. 
He was defending an innocent man, and one that he felt and knew 
to be innocent. (See on this point Moulton’s evidence.) He was 
not only a dumb spectator for two days, but could not argue his 
case before the jury, and did not attempt it. 

Read the accounts of this trial given in the testimony of Judge 
Cuthbert (evidence, pages 76 to 84); of Peter Hamilton (page 94), 
and of Tlios. A. Hamilton (p. 259); of Gustavus Horton, generally, 
and of Wm. I). Dunn—all in the printed evidence—and of Percy 
Walker, taken in Mobile. 

Turn to the charge ot the court, which, from beginning to end, as¬ 
sumes the facts, making every one of them a predicate of guilt. 
Read the account of the manner in which the Judge used the police 
docket, narrated by Horton, and the portion of his charge relating 
to that subject. See how his records speak falsely respecting the 
admission of Dimon’s testimony. (Cuthbert, p. 69.) 

Look at him in liis official chamber, just after lie had procured a 
conviction, and mark his ferocious glee. Observe his friends, alarmed 
at the extent to which he is disposed to wreak his vengeance, send¬ 
ing into the bar for Wm. D. Dunn, Esq., to counsel moderation. 
Read the following from Dunn’s evidence, page 187 : 

By Mr. Smith : 

Q. Were you present when Gustavus Horton was tried on an indict¬ 
ment for discriminating against Charles Archie Johnson on account of 
his color?—A. I do not know that I was in court during the whole trial. 
I was there for some time. 

Q. Give to the committee, as near as you can, all that transpired on the 
trial of Gustavus Horton on that indictment.—A. I cannot recall the lan¬ 
guage, I can only recall impressions left on my mind by witnessing the 
exhibition which took place in the court. The manner of the Judge 
on that occasion was overbearing towards the counsel for Mr. Horton, Mr. 
Charles Moulton. There was a constant interruption on the part of the 
court to suppress the. interrogatories propounded by Mr. Moulton in be¬ 
half of Mr. Horton. 

Q. What was the tendency of the interrogatories?—A. I cannot tell 
what the interrogatories were. They were such interrogatories as coun¬ 
sel conducting the defence, under the state of facts existing, would pre¬ 
sent. I do not recollect what language was used, or exactly the character 
of the inquiries. I do recollect the character of some of them. Some of 
them were tending to show that this action on the part of Horton was 
only following the precedents of preceding Mayors. I remember that. 
That evidence was excluded. 

Q. What effect did the bearing of the judge have upon Moulton ?—A. 
Well, sir, he wilted; that is about as expressive a phrase as I know of. 
It was about as complete a breaking down of counsel as any that I ever 
witnessed. 

By Mr. Churchill : 

Q,. What was the manner of the counsel toward the court on that occa¬ 
sion ?—A. It is difficult to conceive of anything more deferential than it 
was. 


46 


Q. Was there anything in the conduct of counsel or of witnesses to oc¬ 
casion other than courteous treatment from the Bench?—A. Nothing that 
I witnessed. 

By Mr. Eldridge : 

Q,. Nor of the defendant?—A. The defendant was perfectly silent; the 
defendant did make a speech afterwards, when called upon by the judge ; 
but that was at a subsequent period of the trial, after the conviction. 

Q. There was nothing in his conductor bearing that should induce this 
conduct on the part of the judge ?—A. Nothing in the world. 

By Mr. Smith : 

Q. Give some idea of the look and manner, &c., of the judge.—A. I 
cannot describe that exactly, except to say that it was overbearing and 
dictatorial. 

Q. State who catechised the witnesses mainly in relation to the case.—A. 
Mr. Moulton was not allowed to conduct the examination of his witnesses 
hardly at all. I do not recollect the witnesses for the prosecution. The 
conduct of the court toward the witnesses for the prosecution has no rest¬ 
ing place in my memory at all. 

By Mr. Eldridge: 

Q. Who was trying the case on the part of the government?—A. I 
think it was Mr. George N. Stewart. 

Q,. Was he district attorney at that time?—A. No, sir ; Mr. Martin was 
the district attorney. 

By Mr. Smith : 

Q. State whether you yourself made any remonstrance to the judge in 
relation to the sentence that he should pronounce on Mr. Horton, and 
what the judge replied, if anything.—A. The judge sent for me to his 
room after the conviction. There were some gentlemen in his room when 
I got there. Whether any conversation occurred between the judge and 
myself in the presence of those gentlemen I do not recollect. The pur¬ 
port of the judge’s inquiry of me was what I thought should be done with 
Horton. I cannot repeat the language in reply, but I can state the im¬ 
pression I endeavored to convey. I said to him in effect that it was a 
small affair ; that the thing had been grossly magnified, in my judgment; 
that Horton was an old man, and with small means, and that I thought 
a very small fine would be a sufficient punishment. I do not recollect 
any response which the judge made at that time. He said he had an en¬ 
gagement to dine* The other gentlemen had left the room, and we walked 
out and walked down the stairs. As we were on the stairway he repeated 
the inquiry to me, what I thought should be the sentence of Horton, and 
I repeated what I had said before. The judge replied in a manner which 
made a distinct impression on my mind : “By God,” he said, “you may 
eat me if I do not do more than that.” 

Q. Do you know whether his feeling was one of animosity towards 
Horton?—A. No; I never had any conversation with the judge about 
Horton except on that occasion. 

Q,. Do you know whether other gentlemen remonstrated with him 
against doing what he was disposed to do in the way of sentence ?—A. Not 
in my presence ; I have only heard of it from other gentlemen. 

And again Dunn testifies at pages 193, 194 : 

By Mr. Smith : 

Q,. State whether Judge Busteed made any expression or demonstra¬ 
tion as to Horton’s conviction ?—A. I answer that in the affirmative. 


47 


Q,. What was the expression or demonstration ?—A. There was an ebul¬ 
lition of fine spirits, decided gratification, and remarks of a congratulatory- 
character which I cannot repeat. 

By Mr. Eldridge : 

Q. Was that before or after the wine was taken ?—A. It was concur¬ 
rently, I suppose, for I was a very short time in the room. 

By Mr. Churchill: 

Q. Was it immediately after the verdict?—A. I cannot say ; I think it 
was. 

Q. Were you in court when the verdict was given ?—A. I think I was; 
but I am not so clear on that subject. This interview was, I think, im¬ 
mediately after the return of the verdict, and before the sentence. I can¬ 
not repeat the language, but it was simply an expression of gratification 
at the result of the trial. 

By Mr. Eldridge : 

Q. How did Judge Busteed manifest this ebullition of satisfaction and 
joy?—A. By the remarks which he made and the good humor he mani¬ 
fested. 

Q. What did he say ?—A. I cannot repeat his language. 

Q. Tell us what he said in substance.—A. The idea was that a great 
success had been achieved. 

Q. Did he express himself in words to that effect?—A. I think he 
did. 

By Mr. Churchill : 

Q. By whom had this success been achieved.—A. By the prosecution. 

Q,. Did he convey to your mind that he felt it was a personal success on 
his part.—A. Exactly. 

By Mr. Eldridge : 

Q,. Can you tell us anything that he said from which you drew that 
conclusion—that he had a^personal success ?—A. My examination-in-chief 
will show that, I think. He conferred with me about the sentence which 
should be pronounced upon Horton, and in terms which indicated that 
he supposed I was sympathizing with the prosecution. I was not sym¬ 
pathizing with the prosecution against Horton. I felt great sympathy 
for Horton. No remonstrance on my part would have been necessary 
but for the manifestation of feeling which was made on the part of the 
judge, it seems to me. 

Q. Do you recollect what the judge was doing when you went into his 
room ?—A. I remember that it was a hilarious meeting. There was a 
good deal of hilarity. Mr. Stewart, who conducted the prosecution, was 
present, and'was evidently very much gratified himself at the success of 
the prosecution. 

Q. Had wine been drank before you came in?—A. I cannot say 4 
There was not time to have drank any wine to have produced any effect 
on them. 

Q,. Had the judge just left the bench ?—A. He had just left it. 

Q,. Did you see any indications of their having drank wine when you 
first got to the judge’s room ?—A. I think there were probably glasses 
and a bottle on the sideboard. 

Q. What was the wine that was drank, champagne or still wine ?—A. 
I do not recollect. 

By Judge Busteed: 

Q. Do you know what the sentence of the court on Horton was ?—A. 
I do. 

Q. What was it?—A. $250 fine. 


48 


Q. Do you know the extent of sentence which the judge could have im¬ 
posed ?—A. I believe Horton could have been sent to the penitentiary. 

Q. For two years ?—A. I do not know; I never studied the act of Con¬ 
gress on the subject. 

See how he is forced down to a mere fine by the very rebound his 
ferocity had given to the public mind in Horton’s favor. 

A study of Judge Busteed’s conduct in this case almost persuades 
us that he sat to Macauley for his picture of Jeffreys. 

The most depraved of men do not thus scheme and contrive and 
plot the conviction of innocence without a motive. Jeffreys was 
above that. Judge Bus teed was above that. There was a motive. 
There was but one. That one was revenge. 

Bevenge because Horton had exposed the demagogue and blasted 
his political hopes. The white men of the Republican party (save 
those like John Hardy) despised him, and the colored men, as is 
shown by Gfen. Swayne, refused to be his dupes. Horton exposed 
him, and thus was u the engineer hoisted with his own petard.” 

Here the review of the evidence on the charges preferred might 
end. But beyond this, there is cause for impeachment brought out 
by his own evidence, and to that attention is now directed. It is 

THAT JUDGE BUSTEED BESIDES IN THE STATE OF NEW YOBIv. 

Mr. Worrall, the Judge’s friend and factotum, (at page 289,) testi¬ 
fies that the Judge sold his house on Madison Avenue for about 
$40,000, and that “ he owns a fine place at Jamaica,” and that he 
does not consider his circumstances poor by any means; yet the 
Judge, as we have seen, accepted in 1807 money from his registers 
in bankruptcy, tendered on the score of his poverty , and to assist him 
in defraying the expenses attending his sickness, his family having 
come on from New York. (See Spencer’s evidence, p. 40.) 

N. W. Trimble, the Clerk of the United States Court at Mobile, 
appointed by Judge Busteed, says (page 388) he supposes the Judge 
lives in Mobile. u When in Alabama , lie is at Mobile, Montgomery, 
and at Huntsville. That he thinks his family lives at Jamaica, 
Long Island.” 

Judge Cuthbert (page 72) speaks of Jake Wilson’s relations to 
the Judge as those of a menial servant j testifies that a part of the 
time the Judge’s family was with him, and in this connection he 
speaks of his keeping house; and again he speaks of when the 
Judge was living (in the past) in Mobile with his family. 

Rufus Andrews came to Mobile with Judge Busteed in the fall of 
1865, lived in his family in Mobile, and left in April or May, about 
the time Judge Busteed went to New York. (p. 305.) At page 30G, 
Andrews, referring to the first business in which he was engaged’iu 
Mobile in 1865, says he lived at the house Judge Busteed occupied, 
(Madame LeVert’s house,) and that soon after Judge Busteed (mis¬ 
printed Judge McKinsley) broke up housekeeping and left. Sev¬ 
eral witnesses speak of Judge Busteed’s visits to Alabama, and his 
departure for New York. 


49 


In the fall of 1865 he brought out his family from New York, oc¬ 
cupied up to May, 1866, Madame LeVert’s house in Mobile, and has 
since remained in New York, visiting Alabama to hold court, and 
returning to his home; and the only occasion since May, 1866, of 
his family’s being in Mobile, was their visit to him in 1867, after 
Martin, the district attorney, shot him, and when he was sick from 
his wounds. 

Not only does Judge Busteed prove, by letters written to him and 
given in evidence by him, that he lives—and lives luxuriously—at 
Jamaica* in New York, but the fact is fully established by other 
proofs. 

Witness Keffer, in reply tp a question by Mr. Churchill, says in 
substance, (see foot of page 197 and top of 198,) that when register 
in bankruptcy in Alabama, under Judge Busteed, he went to Long 
Island to see him, and “ waited at his house several days for that 
purpose. But he was in Boston, and they expected him daily, but 
he did not return within the time I could stay there.” 

At pages 201 and 202, will be found two letters from Keffer to 
Judge Busteed, introduced in evidence by the latter, one from Mont¬ 
gomery, of July 22, 1867, saying, “ Perhaps next summer I can 
afford to go North, and if so, I would be delighted to see your home 
at Jamaica.” (Jamaica is on Long Island.) 

The other from New York, October 20,1867, describes the Judge’s 
“lovely house” on Long Island, his “treasures,” his splendid apart¬ 
ments, with landscape views, splendid paintings, etc., etc., and won¬ 
ders how,' with all this, he could “makeup his mind to come to 
poor God-forsaken Alabama and hold court (not reside) among rebel 
lawyers.” 

At pages 38 and 39 Judge Busteed takes pains to prove by Judge 
Chilton, three times, that he (Chilton) was the the guest of Busteed 
at the latter’s house on Long Island, in 1868, and that Busteed and 
his wife and children were there, and that Chilton had before en¬ 
tertained Busteed at Chilton’s house in Montgomery, where the lat¬ 
ter and his wife and children were. 

'Mr. Manning, (p. 239,) speaking of Jacob Wilson, says he was the 
same man who “accompanied the Judge, I believe, as servant, on 
all his visits to Mobile except one, I think; and whom I saw stand¬ 
ing at his office door in New York, and who invited me into the 
Judge’s office there.” 

Judge Busteed has been in the actual exercise of his judicial func¬ 
tions in Alabama since the fall of 1865. (p. 69.) The statute of 18th 
December, 1812, sec. 1, (2 statutes at large, p.788,) makes it “a \ 
high misdemeanor” for him to reside out of the State of Alabama. 

The statute imposes no penalty for its infraction, but the Constitu¬ 
tion of the United States does—and that penalty is removal from 
office by impeachment. The argument of Luther Martin, in defence 
of Judge Chase, upon the meaning of the clause in the Constitu¬ 
tion alluded to, leaves no question but the word “ high” was added 
to the word “ misdemeanor ” in the statute, that no doubt might 
I 


50 


exist but that a Judge should be impeached for this “high misde¬ 
meanor ; ” and the omission of Congress to affix a penalty to the 
offence, renders it certain that the exact punishment intended was 
removal from office by impeachment. 

Tor non-residence alone, then, the Judge is liable to impeachment, 
and should be impeached. 

And now, having shown that he has not only befouled the ermine 
he wears, but has been guilty of high crimes and misdemeanors, 
let us dismiss the subject with some general views of 

WHAT, BY THE CONSTITUTION, IS AN IMPEACHABLE OFFENCE. 

Or rather let us inquire if he can escape some of his crimes be 
cause, perchance, the statutes of the United States shall not have 
supposed them capable of commission. 

Are causes of impeachment confined to a violation of the crimi¬ 
nal statutes of the United States, or is there a common law and a 
history to which the expression “during good behavior,” in our 
constitution, refers ? That there are offences simply recognized by 
the laws of the United States, see 1. Brightley’s Digest, page 204, 
section 17. 

If we are bounded alone by criminal statutes, then the inestima¬ 
ble common law principles of magna carta —that justice shall not be 
sold, nor delayed , nor denied —and the history of judicial corruption 
in England, exhibiting itself in packing juries, in browbeating wit¬ 
nesses and attorneys, in forcing verdicts “by order of the court,” 
(as did Judge Busteed in the case testified to by Judge Cuthbert)— 
then this history, with its corrections in the revolution of 1688, and 
these principles of magna carta , are a barren waste to the American 
people in the courts of the United States! In these courts, and in 
them alone , judicial corruption may wallow in its ancient mire and 
filth, save so far as forbidden by the few criminal statutes ot the 
United States. 

The act of settlement of the crown upon William and Mary 
pointed directly to the judicial corruptions I have named, flowing 
from the dependence of the Judges on the Crown ; and the act of 
13 William III., chap. 2, declared that the judicial term should be 
“quamdiu bene se gesserint .” Our constitution engrafts this by the 
equivalent “during good behavior,” and as distinctly refers to and 
adopts magna carta and the act of 1688, and of 13 William, and 
adopts them in the light of history, as if express words of adop¬ 
tion were employed. The tenure of the Judge’s office then is “dur¬ 
ing good behavior,” as meant by English history. The words are 
historical. When, in the sense referred to, the Judge ceases to ob¬ 
serve “good behavior,” the tenure of Ms office has expired. The Con¬ 
stitution is the statute which so declares. The remedy is impeach¬ 
ment. 

The impeachment of a judge is an inquiry of office to determine 
whether the tenure of his office, “good behavior,” lias expired, and 
it is inadmissible so to construe the language of the remedy as to 
make it paramount to the language creating the tenure. 


51 


To the student of the Constitution of Great Britian and of the 
United States, it is evident that the words “quamdiu fane se gesse- 
rint” or “during good behavior,” are historical, and are employed 
in our Constitution with reference to their history, and in their his¬ 
torical sense; and that when our constitutional provision for impeach¬ 
ment for “high crimes and misdemeanors” comes to be applied to 
the judicial office, we must recur to the history of that office. 

The tenure arose from, and to remedy, the subserviency of the 
judges to the crown; which subserviency caused them, among other 
misdemeanors, to be insolent, overbearing and tyrannical, to the 
bar and the suitors—Jeffreys being but an extreme instance of 
such conduct very generally practiced. The offence must be a high 
crime or misdemeanor; but it is a misdemeanor in a judge, and a 
high one,'to sell, delay or deny justice—a crime as old as history 
itself—a crime against the venerable charter of English liberty 
declaring an English birthright already possessed. 

Suppose Judge Busteed, instead of George the Third, had pro¬ 
tected by a mock trial a soldier from punishment for murders which 
he had committed on the inhabitants of the United States. This 
outrage is denounced in the Declaration of Independence. Would the 
offence not be impeachable because it finds no place in the criminal 
statutes of the United States % 

I submit that the doctrine that no offence by a judge is impeach¬ 
able unless it is found in a criminal statute of the United States, 
will not for a moment bear investigation, and would, if established, 
sap the foundation of all securities for the pure administration of 
justice in the National courts. 

The foregoing remarks are not intended to apply tp other than 
judicial offices. The broad distinction between a judicial office, 
whose tenure is “during good behavior,” and other offices of a dif¬ 
ferent character and whose tenures are for fixed time, will readily 
oecur to the Committee. As to other than judicial offices I enter 
upon no examination or discussion. 

I now leave Judge Busteed to the judgment of those guardians 
of judicial purity appointed by the Constitution; and that justice 
which he has so outraged, to their helping hands. 

The testimony upon the charges made against Judge Busteed by 
H. C. Semple, Esq., has been but briefly reviewed in the foregoing 
argument. Mr. Semple will do justice to that. 


Note.— As the last pages of the foregoing review were passing 
through .fclie press, my attention was called to the published pro¬ 
ceedings, purporting to be those of the bar of the Northern District 
of Alabama, held at Huntsville, in which Judge Busteed is eulo¬ 
gized for the “ dignity, courtesy, impartiality and ability with which 
he has dispatched ‘the business of this term” with assurance that 


52 


such conduct at this term has won the respect and esteem of the Bar, 
and entitled the Judge and the court over which he presides to 
the public confidence. 

There is no doubt but this cheap certificate, which so surprised the 
Judge , was gotten up^ as an answer to sworn testimony on which 
Judge Busteed is being tried, and that it will be duly forwarded by 
Judge Busteed to almost every member of Congress. Except that 
it is not given under oath, it answers to the Old Bailey detdce of 
acquitting the guilty criminal by proving that since he was indicted 
he has behaved well; and reminds one of the charge of an emi¬ 
nent judge to the jury to the effect that—here is a man, said to 
have a good character, who is proved to have stolen six pair of 
stockings. 

The reader of the resolution is left in doubt as to whether the 
proceedings were intended as weak and cheap x>raise or as cruel sar¬ 
casm. The patent sarcasm is conveyed that Judge Busteed, in all 
his previous judicial career , has failed to dispatch the public business 
with dignity, courtesy, impartiality, or ability, and that he has not 
hitherto won the respect and esteem of the bar, or entitled himself 
or the court over which he presides, to public confidence. 

The Committee and the House will fully understand the value of 
such praise , and the worth of that character which is so upheld. 

The proceedings may well be consigned to the “ waters of Lethe.” 

Since the foregoing note was written I am happy to see, in a 
Huntsville paper, the following card from a worthy and eminent 
member of the Huntsville bar, and doubt not but many other mem¬ 
bers of the bar of the Northern District concur with him in views, 
the propriety of which will strike every reader. B. H. S. 

Mr. Editor —I observe in the Independent of Sunday morning, 
and also in the Advocate of yesterday, a resolution which purported 
to emanate from the Huntsville bar, laudatory of Judge Busteed. 

The language of the resolution declares that Judge Busteed, “by 
the dignity, courtesy, impartiality and ability with which he has 
dispatched the business of this term, has won the respect and esteem 
of the bar, and entitled himself and the court over which he pre¬ 
sides to the public confidence.” 

I do not intend to assail Judge Busteed, nor do I propose to con¬ 
trovert the statements contained in the above resolution; if it con¬ 
tains the opinions of the gentlemen of the bar who participated at 
the meeting, it is .their matter, not mine ; their opinions, not mine. 


53 


My ground of complaint is that, having no notice that a resolu¬ 
tion of this character was contemplated, and having no opportunity 
of assenting or dissenting to the same, I am represented as having, 
as a member of the bar, assented to it; thus placing me in a posi¬ 
tion utterly inconsistent with my own views of duty. 

Whilst I concede that Judge Busteed’s conduct on the bench, at 
the late term of his court, was in striking contrast with his conduct 
at each preceding term, and, therefore, was to me, as well as to the 
members of the bar generally, a most agreeable surprise, I could 
not feel warranted in endorsing him, on so short a probation, as 
worthy of the public confidence. Nor could I say that a Judge who, 
during two terms of his court, by his overbearing manner, had out¬ 
raged the feelings of the Bar and the community, could, by any pos¬ 
sibility, at a succeeding term win my respect and esteem, merely be¬ 
cause it suited his purposes to conduct himself with common pro¬ 
priety. 

Disclaiming all intention of reflecting upon my brethren of the Bar 
who may differ with me in this matter, and with no desire to do injus¬ 
tice to Judge Busteed but entertaining as I do the profound conviction 
that, by his course upon the bench here, he has given no evidence 
that he merits the high encomium contained in the resolution, can¬ 
dor and a sense of duty to myself compel me thus publicly to de¬ 
clare that, had I been present, I should have dissented from the 
resolution. 

W. W. Garth. 


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APPENDIX. 


INDEX AND BRIEF OF TRANSCRIPTS FROM THE RECORDS OF 
JUDGE BUSTEED’S COURT IN THE NATCHEZ SALVAGE CASES, 
WITH EXPLANATORY REMARKS. THE TRANSCRIPTS WERE 
GIVEN IN EVIDENCE BEFORE THE COMMITTEE IN WASH¬ 
INGTON, AND ARE FILED WITH THE PROOFS, BUT ARE 
NOT PRINTED. 

This index and brief will aid the committee to understand and 
refer readily to the transcripts, which are voluminous, and will also 
tend to show in what unintelligible confusion the records of the 
court are kept. 


THEEE AEE EIGHT TEAN SCEIPTS 


TEANSCEIPT No. 1 

Shows the Admiralty docket or calendar of the Natchez cases, 
eighteen in number , (counting the case of Joseph Gray vs. 22 bales 
of cotton,) qnd no more. 

Now observe that, though there were but eighteen of these causes 
on the docket, and these consolidated by Judge Busteed’s own de¬ 
cree, see transcript 4, pp. 13,14, (excepting Gray’s case, which was 
not consolidated,) yet the judge specifically passes upon and allows 
thirty-two distinct bills of costs, as if there wer^ thirty-two cases. 
These and other costs were resisted by counsel at the time. See in 
this connection the multiplication of suits and costs by Judge Bus- 
teed, in transcript 4, pages 10, 20, 30, 37, 40 to 69. 

t 

TEANSCEIPT No. 2 

Contains all the minutes of the court relating to the case of Joseph 
Gray vs . 22 bales of cotton. 





56 


TRANSCRIPT No. 3 

Contains transcripts of papers on file in tlie case of Joseph G-ray vs. 
22 hales of cotton, which are a part of the record, but not on the 


minutes, viz: 

Page. 

1. Libel. 1 

2. Seizure. a.;..... 5 

3. Monition... 6 

4. Petition for sale of twenty-two 

bales cotton. 7 

5. Answer of Claimants and Ex¬ 

ceptions. 9 

6. Amended Libel.11 

7. Order of Sale.12 

8. Venditioni Exponas.13 


Page. 

9. Marshal’s return thereto.14 

10. Marshal’s account of sale of 22 

bales of cotton.15 

11. Vouchers thereto for expenses, 

etc.16 and 17 

12. Bill of other costs.18 

13. Judge Busteed’s decree there¬ 

on.:.19 

14. Receipts to Worrall for mon¬ 

ey..20 and 21 


TRANSCRIPT No. 4 

Contains all the minutes of the whole proceedings growing in any 
manner out of the Natchez cases, including the minutes relating to 
the claim filed by Andrews in the name of the United States to 227 
bales of the cotton; also, the minutes relating to the contest between 
Price Williams and John H. Garner and the United States, in the 
order in which they come on the minutes of the court. The confusion, 
which will be observed, arises from the constant practice of enter¬ 
ing orders and decrees u nunc pro tunc ” instead of entering every¬ 
thing day by day, so that suitors and counsel can know what is be¬ 
ing done in the courts. 

The minutes run thus, viz: 

1. An unintelligible entry about some sort of motion— i. e. unin¬ 
telligible until the next U nunc pro tunc ” entry is read—page 10. 
(Note—Pages 1 to 10 are taken up with recitals of hearing evidence 
and reserving decree.) 

2. The U nunc pro tunc ” entry above referred to, of Judge Bus¬ 
teed’s refusal to grant a motion to set aside the sale of the Marshal 
of 454 bales, (which were sold by Judge Busteed’s order to satisfy 
the claim made by Andrews to 227 bales, in the name of the United 
States,) page 11. 

3. Leave given Andrews to file an amended claim for the United 
States, and leave given to Hamilton (counsel for the underwriters) 
to file exceptions. Page 12. 

4. Hamilton’s exceptions overruled and leave given him to file a 
traverse. Page 13. 

5. Nunc pro tunc entry of the consolidation of claims, and claim¬ 
ants’application to take the cotton on bond or stipulation. An¬ 
drews asserts a claim of the United States to 227 hales of the cotton, 
and suggests confusion of property. Judge Busteed orders that 

hales of the cotton, regardless of marks, be held for this claim of 
227 bales, and orders these 454 bales be sold hinder Andrews 1 direc ■ 
lion; proceeds to be paid into court. Claimants are allowed to 
take the rest of the cotton on bond or stipulation. Pages 14 and 15. 

0. Order to retain $15,700 in court, to abide the decree in favor of 



















57 


the United States, or Price Williams and Garner, as the case may 
be, on final decree. Page 18. 

Price Williams and Garner, by their shippers, Ingersoll, Wheeler 
and Wylie, were claimants of part of the cotton seized by Andrews 
in the name of the United States. This new case comes in singu¬ 
larly and unannounced here. It shows how small a portion of 
the 227 bales were saved from the Natchez, though Judge Busteed 
seized double the quantity shipped by them on the Natchez. 

7. Gross proceeds of sale of the cotton ordered to be paid into 
court. Reference to Commissioner Worrall to report the^names of 
the respective salvors, and to compute the share each is entitled to, 
according to principles laid down iu the Judge’s brief of facts, &c.; 
salvage being computed on net proceeds. Pages 19 and 20. 

8. The Judge’s brief of facts in thirty-two cases in full. (Note— 
Here occurs the multiplication of the suits.) Pages 21 to 33. 

9. Mr. Secor is rulejl to render an account of the sales of the cot¬ 
ton which the claimants were allowed to take on bond or stipula¬ 
tions, and which they sold by theif auctioneers, Woodruff & Par¬ 
ker. Page 34. 

10. Buie discharged. Pages 35 and 36. 

11. The Marshal is allowed to withdraw liis bill of charges and 
file ahother. Argument thereon. Second bill of charges is allowed, 
claimants opposing; claimants appeal. Worrall submits thirty-two 
reports, which are confirmed. Claimants now exhibit charges in 
their favor, which are disallowed by the court. Pages 36 and 37. 

12. Nunc pro tunc entry of allowances by the court to the Mar¬ 
shal, which allowances are ordered to be deducted from the gross 
proceeds of sales of cotton before allowance of salvage; all other 
costs (including further charges on the cotton allowed to Marshal Har¬ 
dy in the 32 bills of costs hereafter mentioned in transcript No. 6, 
which observe particularly) are ordered to be paid out of the bal¬ 
ance remaining for the claimants. 

13. Claimants appeal. Page 40. (Thus is the enormous bill of 
costs of $10,414 63-100, mentioned in the review, made up.) 

14. Nunc pro tunc entry, at length, of 32 reports by Worrall. 
Pages 49 to 69. 

15. Nunc pro tunc entry of 32 final decrees by Judge Busteed, in 
which he specially approves Worrall’s thirty-two reports, and thirty- 
two bills of costs in numero , in each instance reciting the amount of 
each bill of costs in each decree. (Note that these thirty-two bills of 
costs are in addition to the allowances made to Hardy, the Marshal, 
out of the gross proceeds, and these thirty-two bills include other 
fees to Hardy. Let this be kept in mind or the reader will be mis¬ 
led.) 

Pull transcripts of these 32 itemized bills of costs are on file—see 
transcript No. 6—and they correspond with the sums allowed by 
Judge Busteed in his 32 decrees. 

Salvage is now allowed in these 32 decrees as per Worrall’s 32 re¬ 
ports, and an order is made to retain $15,700 of the money in court, 
K 


from the claimants, to abide the result of the contest between the 
U. S. and Price Williams & Garner, pp. G9 to 101. 

Salvage being paid, Hardy and Worrall and Wilson having re¬ 
ceived their excessive costs and allowances, the conspirators wish to 
get rid of the claim made by Andrews for the United States to the 
227 bales, which has served its purpose of keeping $15,700 in court. 

Observe the next entry on the minutes, to this effect, viz : 

16. Now come Price Williams and Garner, and move to dismiss 
the claim of the U. S. to the 227 bales. Page 202. 

17. Judge Busteed declares the claim of the U. S. not sustained* 
and orders the $15,700 paid to claimants, Ingersoll, Wheeler & Wy¬ 
lie. (Note how careful Judge Busteed is to make his decree recite 
here, that “the District Attorney makes no opposition to the motion 
to dismiss the case.”) Pages 202, 203. 

The claim of the U. S. is dismissed, and court adjourns at once, 
sine die. Pages 103, 104. 

Observe that although the claim of the U. S. was dismissed, over 
three thousand dollars of the money was held until the parties 
agreed to give Andrews half to get it. About one third of it was 
then kept for cost, and Williams, Garner and McNeill got the re¬ 
mainder for themselves and Andrews—half to Andrews. 

TRANSCRIPT NO. 5 

Consists of papers on file relating to all the cases, except Gray’s case; 
they are not on the minutes , but are part of the record and pleading 
of the cases, viz: 

1. Proctor’s agreement for claimants to take the cotton on bond or 
stipulation. Page £. 

(Judge Busteed refuses. See transcript of minutes.) 

2. Marks of cotton and affidavit in support of motion to bond. 

(Note.—The marks of the cotton were given, pages 1 to 7, by way 

of refuting practically Andrews’ assertion that the marks could not 
be distinguished, and that there was a confusion of property. ) 

3. Affidavits contra. Page 8 to 10. 

4. Andrews’ affidavits. Page 10 to 13. 

5. Hardy’s publication of seizure. Page 13 to 14. 

6. Claim of U. S. to 227 bales. Page 15. 

7. Claimants’ exceptions (by Hamiltons, attorneys). Page 17. 

(Overruled by Judge Busteed. See transcript of minutes.) 

8. Amended claim and answer of the U. S. Page 20. 

9. Claimants’ exceptions (by Hamiltons, attorneys). Page 24. 

10. Affidavits filed by Hamiltons, proctors for claimants, in sup¬ 
port of motion to set aside the sale of 454 bales by marshal Hardy, 
for fraud, &c. Page 28 to 34. 

11. Venditioni exponas. Page 34. 

12. Return thereto. Page 35. 

13. Notice to parties of motion to set aside sale. Pages 43 to 47. 
(Note—We have seen heretofore that Judge Busteed refused to set 
aside the sale.) 


14. Proctor’s consent for the cotton to be bonded. Pago 49. 

15. Judge Busteed’s order aWowing part of the cotton to be bonded. 
Page 50. 

16. Account of sales by Woodruff & Parker produced, in obe¬ 
dience to rule nisi vs. Secor. Page 51. 

17. Secor’s answer to rule nisi . Page 52. 

TRANSCRIPT No. 6 

Contains thirty-two itemized bills of costs, respectively approved 
by Judge Busteetfs thirty-two decrees; each of which decree recites 
the amount of its corresponding bill of costs in numero. See tran¬ 
script of minutes for the thirty-two decrees. The original of each 
of these thirty-two decrees is on file among the records of the court 
in Mobile, with Judge Busteed’s own signature to each one. Each 
of these bills contain a charge for the Marshal for keeping the cotton , 
and this charge is in addition to the large sums allowed him by Judge 
Busteed out of the gross proceeds of the sale. 

See the transcript of minutes No. 4, page 40. Compare these 
bills of costs with the act of Congress. 

That act encourages consolidation of suits, and punishes attor¬ 
neys who fail to consolidate and thus bring costs on their clients. 

Observe: 

1. That Hardy is allowed for 32 seizures and monitions, when 
there were in fact only 18, counting Gray’s case. See transcript 
No. 7, of 17 seizures and monitions, and transcript No. 2, of one 
seizure and monition, in Gray’s case, having the marshal’s return 
endorsed on each. 

2. Worrall is allowed for 32 stipulations, and, indeed, for even 
more. 

3. Worrall is allowed for 32 final records which cannot now be 
found anywhere on the records of the court. 

4. Worrall is allowed $10 for each one of his 32 reports, requiring 
only a simple computation of the amount due to each salvor under 
given rules. One short report would have covered the whole 
ground fully, the cases having been consolidated and there being 
in fact only 18 cases. 

5. The large allowances to various persons, and glaringly exces¬ 
sive costs allowed and maintained by the Judge, can only be fully 
understood by examining—1st, The 32 bills of costs; 2d, The 
allowances to Hardy; 3d, Hardy’s account of sales of cotton, and 
his vouchers for expenses thereof, where it will be seen that Wilson 
gets his full share also; 4th, Those transcripts relating to claimants’ 
efforts to set aside the sale made by Hardy. 

TRANSCRIPT No. 7 

Contains 17 writs of seizure and 17 monitions, with Hardy’s returns 
endorsed thereon. For seizure and monition in Gray’s case, se® 
transeript No. 3, pages 5 and 6. 


TRA£ 

Final record of Price Willi, 
Mallory and Thos, Eldridge, 


LIBRARY OF CONGR ESS 

0 012 416 334 16 


FT 

MEQDE 


g-an 


LIBRARY OF CONGRESS 


0 012 228 234 ft 































































